In The Supreme Court of the United States · Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146 (1947) ... vicarious liability as lessor of a dangerous instrumen-tality

No. _________ ================================================================

In The

Supreme Court of the United States --------------------------------- ♦ ---------------------------------

AEROLEASE OF AMERICA, INC., a corporation,

Petitioner, v.

JOHN K. VREELAND, Administrator Ad Litem for the Estate of JOSE MARTINEZ and the

Personal Representative of the Estate of JOSE MARTINEZ, deceased,

Respondent.

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On Petition For Writ Of Certiorari To The Florida Supreme Court

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PETITION FOR WRIT OF CERTIORARI

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SHELLEY H. LEINICKE, ESQUIRE WICKER, SMITH, O’HARA, MCCOY & FORD, P.A. 515 E. Las Olas Boulevard SunTrust Center, Suite 1400 Ft. Lauderdale, FL 33301 Phone: (954) 847-4800 Fax: (954) 760-9353 [email protected]

Counsel for Petitioner

December 12, 2011

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Whether 49 U.S.C. § 44112 (which insulates commer-cial aircraft lessors who are not in possession or control of the aircraft from legal liability for personal injury, death, or property damage) preempts any contrary state law that allows claims of vicarious liability against such lessors.

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RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Aerolease of America, Inc. is a privately held corporation that is not publicly traded.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................... i

RULE 29.6 CORPORATE DISCLOSURE STATE-MENT .................................................................. ii

TABLE OF AUTHORITIES ................................... vii

OPINIONS BELOW ............................................... 1

JURISDICTION ..................................................... 1

STATUTORY PROVISION INVOLVED ................ 1

STATEMENT OF THE CASE ................................ 2

REASONS FOR GRANTING THE PETITION ..... 5

I. THE FLORIDA SUPREME COURT SE-VERELY LIMITED THE BROAD PRE-EMPTION AFFORDED BY 49 U.S.C. § 44112 WHICH PROTECTS LESSORS, OWNERS, OR LENDERS WHO DO NOT POSSESS OR CONTROL AN AIRCRAFT AT THE TIME OF A CRASH FROM ALL CLAIMS OF VICARIOUS LIABILITY WHEN IT HELD THAT PREEMPTION DOES NOT APPLY TO OCCUPANTS OF AN AIRCRAFT .......................................... 5

A. The plain wording of § 44112 insulates lessors, owners, or lenders who do not have actual possession or control of the aircraft from liability whether the claimant is on board or outside the aircraft when killed or injured ............ 5

B. The legislative history of § 44112 sup-ports preemption ................................. 6

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TABLE OF CONTENTS – Continued

Page

C. An interpretation that § 44112 has a limited preemptive effect ignores the legislative history of both § 44112 and the Uniform Aeronautics Act, and it requires reliance on a single, confus-ing, and inconsistent, statement in a 1948 House report ............................... 14

(1) The legislative history of the short-lived Uniform Aeronautic Act supports federal preemption by § 44112 and its predecessors, § 1404 and § 504 ............................. 14

(2) The Florida Supreme Court’s analysis of the 1948 House Report relating to enactment of § 504 is flawed ............................................. 20

D. Limiting the preemptive scope of § 44112 is inconsistent with other federal aviation-related laws .............. 25

E. Public policy requires federal pre-emption so that owners, lessors, and lenders who are not in possession or control of aircraft are not subject to conflicting state-law based vicarious liability claims ..................................... 26

II. A CLEAR STATEMENT OF FEDERAL PREEMPTION OF STATE LAW BY THIS COURT WILL RESOLVE A CON-FLICT IN THE LAW ................................. 29

CONCLUSION ..................................................... 30

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Page

APPENDIX

Vreeland v. Ferrer, 71 So.3d 70, No. SC10-694, slip op. (Fla. 2011) ............................................ App. 1

Vreeland v. Ferrer, 28 So.3d 906, No. 2D08-248, slip op. (Fla. 2d DCA 2010) ............................ App. 37

Vreeland v. Ferrer, No. 53-2005-CA-003535 (Fla. 10th Cir. Ct. 2007) (Order Denying Plaintiff ’s Motion for Reconsideration of Or-der on Summary Judgment) .......................... App. 51

Vreeland v. Ferrer, No. 2005-CA-003535 (Fla. 10th Cir. Ct. 2007) (Order Granting Defen-dant Aerolease of America, Inc., Motion for Final Summary Judgment) ........................... App. 54

Vreeland v. Ferrer, No. SC10-694 (Fla. 2011) (Order Denying Respondent’s Motion for Re-hearing) .......................................................... App. 60

H.R. REP. NO. 80-2091 (1948) ............................ App. 61

Civil Aeronautics Act of 1938, Pub. L. 80-656, § 504, 62 Stat. 470 (1948) .............................. App. 65

Federal Aviation Act of 1958, Pub. L. 85-726, § 504, 72 Stat. 774 (1958) .............................. App. 66

H.R. REP. NO. 86-445 (1959) .............................. App. 67

Federal Aviation Act of 1958, Pub. L. 86-81, § 504, 73 Stat. 180 (1959) .............................. App. 95

H.R. REP. NO. 103-180 (1993) ............................ App. 97

49 U.S.C. § 44112 (1994) ................................. App. 119

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Page

National Conference of Commissioners on Uni-form State Laws Conference Handbook, 1922, pp. 313-328 ................................................... App. 121


Uniform Laws Annotated, Volume 11, Motor Vehicles-Aeronautics, pp. 157-167, and Sup-plement pp. 11-14 (1938) ............................. App. 152



National Conference of Commissioners on Uni-form State Laws Conference Handbook, 1943, pp. 66-67 ....................................................... App. 203

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TABLE OF AUTHORITIES

Page

CASES:

Coleman v. Windham, 2005 WL 1793907 (R.I. Super. Ct. 2005) ....................................................... 30

Esheva v. Siberia Airlines, 499 F.Supp.2d 493 (S.D.N.Y. 2007) ........................................................ 29

In re Lawrence W. Inlow Accident Litigation, 2001 WL 331625 (S.D. Ind. 2001) ........................... 29

Lamie v. U.S. Trustee, 540 U.S. 526, 124 S. Ct. 1023 (2004) ................................................................ 6

Mangini v. Cessna Aircraft Co., 2005 WL 3624483, 40 Conn. L. Rptr. 470 (Conn. Super. Ct. 2005) .................................................................. 29

Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir. 1994) ................................................................. 29

Orefice v. Albert, 237 So.2d 142 (Fla. 1970) ................. 9

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146 (1947) ................................................. 6

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389 (5th Cir. 1970) .................................. 12, 29

Retzler v. Pratt & Whitney Co., 723 N.E.2d 345, 309 Ill. App.3d 906, 243 Ill. Dec. 313 (Ill. App. Ct. 1999) ......................................................... 30

Storie v. Southfield Leasing, Inc., 282 N.W.2d 417, 90 Mich. App. 612 (Mich. Ct. App. 1979), aff ’d sub nom. Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843, 413 Mich. 406 (Mich. 1982) ........................................................................ 29

viii

TABLE OF AUTHORITIES – Continued

Page

Vreeland v. Ferrer, 71 So.3d 70, No. SC10-694, slip op. (Fla. 2011) ................................................. 1, 4

Vreeland v. Ferrer, No. SC10-694 (Fla. 2011) (Order Denying Respondent’s Motion for Re-hearing) ..................................................................... 1

Vreeland v. Ferrer, 28 So.3d 906, No. 2D08-248, slip op. (Fla. 2d DCA 2010) ............................... 1, 3, 4

Vreeland v. Ferrer, No. 2005-CA-003535 (Fla. 10th Cir. Ct. 2007) (Order Granting Defen-dant Aerolease of America, Inc., Motion for Final Summary Judgment) ...................................... 3

STATUTES:

Airline Deregulation Act of 1978 ............................... 25

Civil Aeronautics Act of 1938, Pub. L. 80-656, § 504, 62 Stat. 470 (1948) ............................... passim

Federal Aviation Act of 1958, Pub. L. 85-726, § 504, 72 Stat. 774 (1958) ................................... 7, 10

Federal Aviation Act of 1958, Pub. L. 86-81, § 504, 73 Stat. 180 (1959) ................................... 9, 12

General Aviation Revitalization Act of 1994 ............. 25

28 U.S.C. § 1257(a) ....................................................... 1

49 U.S.C. § 1404 ..................................................... 7, 12

49 U.S.C. § 44112 (1994) .................................... passim

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TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES:

H.R. REP. NO. 80-2091 (1948) ........................... 9, 22, 25

H.R. REP. NO. 86-445 (1959) ................................. 10, 11

H.R. REP. NO. 103-180 (1993) ..................................... 13

National Conference of Commissioners on Uni-form State Laws Conference Handbook, 1922 ....... 15

Uniform Laws Annotated, Volume 11, Motor Vehicles-Aeronautics (1938) ......................... 14, 15, 20

National Conference of Commissioners on Uni-form State Laws Conference Handbook, 1941 ... 16, 19

National Conference of Commissioners on Uni-form State Laws Conference Handbook, 1943 ......... 19

The Airline Monitor, Financial Characteristics of Airlines (2006); Bureau of Transp. Stats., U.S. Dept. of Transp., Schedule B-43 Aircraft Inventory 46-58, 173-78 (2006) .............................. 26

Is Lessor More? Lexsee 75 J. Air L. & Com. 69 at 72, citing Legal Opinion as to Whether Lease of an Aircraft Conveyed Under a Fi-nance Lease is the Owner of the Aircraft for Purposes of United States Aircraft Registra-tion, 46 Fed. Reg. 18,877 (Mar. 26, 1981) ............... 26

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OPINIONS BELOW

The decision of the Florida Supreme Court is reported as Vreeland v. Ferrer, 71 So.3d 70 (Fla. 2011). (App. 1-36) The Court denied rehearing on September 13, 2011. (App. 60) The district court’s decision is reported as Vreeland v. Ferrer, 28 So.3d 906 (Fla. 2d DCA 2010). (App. 37-50)

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JURISDICTION

The Florida Supreme Court filed its decision on July 8, 2011, and entered an order denying rehearing on September 13, 2011. (App. 1-36, 60) This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

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STATUTORY PROVISION INVOLVED 49 U.S.C. § 44112

(a) Definitions – In this section –

(1) “Lessor” means a person leasing for at least 30 days a civil aircraft, air-craft engine, or propeller.

(2) “Owner” means a person that owns a civil aircraft, aircraft engine, or propeller.

(3) “Secured Party” means a person having a security interest in, or a security title to, a civil aircraft, air-craft engine, or propeller under a

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conditional sales contract, equip-ment trust contract, chattel or corporate mortgage, or similar in-strument.

(b) Liability – A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual pos-session or control of the lessor, owner, or secured party, and the personal injury, death, or property damage or loss occurs because of

(1) the aircraft, engine, or propeller, or

(2) the flight of, or an object falling from, the aircraft, engine or propel-ler.

(App. 119)

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STATEMENT OF THE CASE

Jose Martinez died when an airplane crashed into the surface of the earth. Martinez was a passen-ger in an aircraft that was under a long-term lease from Aerolease of America, Inc. to Danny Ferrer and was operated by a pilot who worked for Ferrer. (App. 1-2, 38) Aerolease had neither possession nor control of the aircraft. John Vreeland, Martinez’ administra-tor ad litem and personal representative, sued the lessee/operator of the aircraft (Ferrer) and his pilot

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for their active negligence and also sued Aerolease for vicarious liability as lessor of a dangerous instrumen-tality. (App. 1, 2)

Aerolease raised federal preemption in its answer to plaintiff ’s second amended complaint and success-fully sought summary judgment on the basis that 49 U.S.C. § 44112 preempts state law regarding vicari-ous liability claims against lessors of aircraft who do not possess or control the aircraft at the time of an accident. Vreeland v. Ferrer, No. 2005-CA-003535 (Fla. 10th Cir. Ct. 2007) (App. 51-53, 54-59) Florida’s Second District Court of Appeal confirmed the ruling. Vreeland v. Ferrer, 28 So.3d 906 (Fla. 2d DCA 2010). (App. 37-50)

The Florida Supreme Court reversed, holding that

Florida’s dangerous instrumentality doctrine imposes vicarious liability upon owners and lessors of aircraft, even where the aircraft is not within their immediate control or posses-sion at the time of the loss. To the extent that the doctrine applies to injuries, damag-es, or deaths that occur on the surface of the earth, the doctrine conflicts with, and is therefore preempted by, section 44112. How-ever, because the death of Martinez occurred while he was a passenger in the plane that crashed – not1 on the ground beneath the

1 All emphasis is added unless noted to appear in the original text. “App.” refers to the Appendix to this petition.

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plane – the wrongful death action filed by Vreeland is not preempted by section 44112.

Vreeland v. Ferrer, No. SC10-694, slip op. (Fla. 2011). (App. 31-32) The decision reasoned that § 44112 ap-plies “only to individuals and property that are un-derneath the aircraft during its flight, ascent, or descent. Under this interpretation, Aerolease would not benefit from any limitation articulated by § 44112 because Martinez was not ‘on land or water’ at the time of the crash – he was a passenger inside the aircraft.” (App. 21)

The dissent said the majority’s opinion “defies reality” and argued that the majority’s reasoning “does not ‘explain why an airplane crash does not cause an injury on the surface of the earth regardless of whether the injured person was in the airplane or standing on the ground.’ Vreeland [v. Ferrer, 28 So.3d 906], at 911. . . . Even though Martinez was in the aircraft when it hit land, his death occurred ‘on land,’ not in the aircraft prior to contact with land.” (App. 35)

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REASONS FOR GRANTING THE PETITION

I. THE FLORIDA SUPREME COURT SE-VERELY LIMITED THE BROAD PREEMP-TION AFFORDED BY 49 U.S.C. § 44112 WHICH PROTECTS LESSORS, OWNERS, OR LENDERS WHO DO NOT POSSESS OR CONTROL AN AIRCRAFT AT THE TIME OF A CRASH FROM ALL CLAIMS OF VI-CARIOUS LIABILITY WHEN IT HELD THAT PREEMPTION DOES NOT APPLY TO OCCUPANTS OF AN AIRCRAFT

A. The plain wording of § 44112 insulates lessors, owners, or lenders who do not have actual possession or control of the aircraft from liability whether the claimant is on board or outside the aircraft when killed or injured

While the Florida Supreme Court recognized that the conflict preemption doctrine precludes application of Florida’s dangerous instrumentality law if it is inconsistent with § 44112, the court improperly parsed § 44112 so as to permit a vicarious liability claim by persons injured while in an aircraft that crashes to the surface of the earth but to bar such claim by those who are beneath the aircraft on land or water who may be injured or killed by the crash. The plain and unambiguous wording of the statute does not permit this distinction, which as the dissenting opinion notes, “defies reality.” (App. 35) This statutory language, standing alone, expresses Congressional intent to fully preempt state law on the issue of vicarious liability of

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owners, lessors, and lenders who do not possess or control an aircraft at the time of an accident.

The court ignored the plain wording of § 44112 and resorted to a myopic view of legislative history to reach its interpretation of the statute. There is no need to resort to legislative history when a statute’s plain meaning is clear. Lamie v. U.S. Trustee, 540 U.S. 526 (2004).

B. The legislative history of § 44112 sup-

ports preemption

Whether § 44112 is viewed independently or in its historical context, Congress intended to preempt any state law that permits vicarious liability for owners, lessors, or secured parties who neither pos-sess nor control an aircraft that crashes.

Though there is no express statement of field preemption of state law in § 44112, its unequivocal and broad provisions require such preemption be-cause the federal regulatory scheme is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Alternatively, field preemption is inferred where “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Ibid.

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Section 44112 has legislative roots in the Civil Aeronautics Act in 1938.2 As originally enacted, there was no provision protecting owners or lessors from vicarious liability claims. In order to further promote expansion of the aviation industry, Congress used the

2 For convenience, the federal and state legislation dis-cussed in detail infra follows this time line:

1922 National Conference of Commissioners pre-sents the Uniform State Law for Aeronautics (App. 121-125, 146-151)

1938 Congress enacts the Civil Aeronautics Act of 1938 and creates the Civil Aeronautics Authority

1938 National Conference of Commissioners withholds submission of a Uniform Aeronautics Code pending a study of aviation liability legislation by the Civil Aeronautics Board (App. 200-203)

1941 National Conference of Commissioners with-holds submission of three acts within the pro-posed Uniform Aeronautics Code (App. 203)

1943 National Conference of Commissioners on Uniform State Laws withdraws the Uniform Aeronautics Act (App. 181-184, 203-204)

1948 Congress amends the Civil Aeronautics Act of 1938 by enacting § 504 (App. 65-66)

1958 Congress passes the Federal Aviation Act of 1958 and creates the Federal Aviation Agency to assume responsibilities of Civil Aeronautics Administration. Title V of the Civil Aeronautics Act of 1938 is retained, and § 504 is codified at 49 U.S.C. § 1404 (App. 64-94, 95-96)

1959 Congress revises § 1404 to include lenders 1994 Congress revises Title 49 so that 49 U.S.C.

§ 1404 becomes 49 U.S.C. § 44112 and the provision is reworded for clarity (App. 97-103, 118, 119-120)

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power granted by the Commerce Clause, to amend this Act in 1948 to add § 504 to limit “the liability of certain persons not in possession of the aircraft”:

No person having a security interest in, or security title to, any civil aircraft under a contract of conditional sale, equipment trust, chattel or corporate mortgage, or other in-strument of similar nature, and no such les-sor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by rea-son of his interest as lessor or owner of the aircraft so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, or by the ascent, descent, or flight of such aircraft or by the dropping or falling of an object there-from, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage, or loss.

Civil Aeronautics Act of 1938, Pub. L. 80-656, § 504, 62 Stat. 470 (1948). (App. 65-66) As established by Congress’ use of the phrase “caused by such aircraft, or by the ascent, descent, or flight of such aircraft,” it is clear that Congress intended broad, complete pre-emption without artificially distinguishing between persons who are inside or outside the aircraft at the time they are harmed.

Congress’ intent to protect all non-controlling, non-possessory owners and lessors from vicarious liability claims is again reflected in the 1948 House

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Report which discussed its concern about the Uniform Aeronautics Act which had been adopted between 1922 and 1938 in ten states3 and which made an aircraft owner liable “whether such owner was negli-gent or not.” H.R. REP. NO. 80-2091 (1948). (App. 61-64) The House report regarding § 504 also explained that it wanted to prevent any interpretation or con-struction of the Uniform Aeronautics Act that would “impose upon persons who are owners of aircraft for security purposes only, or who are lessors of aircraft, liability caused by operation of such aircraft even though they have no control.” H.R. REP. NO. 80-2091 (1948). (App. 62) The stated purpose of § 504 was to “remove this doubt by providing clearly that such persons have no liability under such circumstances” of damages resulting from operation of aircraft. H.R. REP. NO. 80-2091 (1948). (App. 62) In short, Congress intended to preempt any contrary state law that would impose vicarious liability against owners or lessors of aircraft.

During the years following the end of World War II, the aviation industry underwent tremendous growth. As part of the response to this expansion, Congress passed the Federal Aviation Act of 1958, which among other things, created the Federal

3 Delaware, Indiana, North Carolina, North Dakota, New Jersey, South Carolina, South Dakota, Tennessee, Vermont, and Wisconsin, though it was never adopted in Florida. Florida created its doctrine of vicarious liability of owners of aircraft in 1970 through common law. Orefice v. Albert, 237 So.2d 142 (Fla. 1970).

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Aviation Agency to assume the responsibilities of the Civil Aeronautics Administration. The protection from vicarious liability contained in § 504 of Title V of the Civil Aeronautics Act was retained in an identi-cally worded provision in the Federal Aviation Act codified as 49 U.S.C. § 1404. (App. 66)

As originally enacted in 1958, § 1404 exempted airplane owners and lessors “whose sole interest therein is a security interest from liability arising out of the operations of the civil aircraft.” H.R. REP. NO. 86-445 (1959); Federal Aviation Act of 1958, Pub. L. 85-726, § 504. (App. 66, 70) This original legislation did not, however, include those with “security inter-ests in specific aircraft propellers, as well as aircraft engines [even though] propellers for modern transport-type aircraft are complex and expensive, sometimes costing as much as $25,000 each, and usually are readily interchangeable from one engine to another.” H.R. REP. NO. 86-445 (1959). (App. 69)

In 1959, Congress amended the vicarious liability exemption to apply not only to owners and lessors of the entire aircraft but also to those entities who financed or leased engines or propellers. Federal Aviation Act of 1958, Pub. L. 86-81, §§ 503-504, 73 Stat. 180, 180-181 (the purpose of the amendment is to “facilitate financing of certain aircraft engines and propellers”); H.R. REP. NO. 86-445 (1959). (App. 67-94) The House report reiterated its intent to fully preempt any state-based “absolute liability” claims against not only owners, lessors, but also lenders:

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Since those interested in leasing or separate-ly financing aircraft engines and propellers interpret the so-called absolute liability laws enacted by various states as applying to them, they are unwilling to enter into such arrangements unless the law is amended to provide them with the same protections now afforded to holders of security interest in air-craft.

H.R. REP. NO. 86-445, at 2 (1959). (App. 72) The amended § 1404 reiterated the clear Congressional intent for preemption of all state law claims against owners, lessors, or lenders of aircraft and/or its major components who were not in possession at the time of an incident:

No person having a security interest in, or security title to, any civil aircraft, aircraft engine, or propeller under a contract of con-ditional sale, equipment trust, chattel or cor-porate mortgage, or other instrument of similar nature, and no lessor of any such air-craft, aircraft engine, or propeller under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft, aircraft engine, or propeller so leased, for any injury to or death of persons, or damage to or loss of property, on the sur-face of the earth (whether on land or water) caused by such aircraft, aircraft engine, or propeller or by the ascent, descent, or flight of such aircraft, or by the dropping or falling of an object therefrom, unless such aircraft,

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aircraft engine, or propeller is in the actual possession or control of such person at the time of such injury, death, damage, or loss.

Pub. L. 86-81, 49 U.S.C. § 1404. (App. 95-96) The Florida Supreme Court apparently failed to consider the multiple statements of Congressional intent to protect owners, lessors, and lenders from any type of “so-called absolute liability laws enacted by various states” when it decided that Congress intended to distinguish between the ability to pursue a vicarious liability claim based on whether the person is inside or outside of an aircraft that crashes.

In one of the earliest opinions considering § 1404, the Fifth Circuit Court of Appeals reiterated the well-settled proposition that agreed that “the commerce clause as interpreted by the courts has left state sovereignty unimpaired except where Congress has clearly indicated an intent to supersede state law.” Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389, 1395 (5th Cir. 1970). The court then examined § 1404 and found that “on its face it was enacted to facilitate financing of the purchase of aircraft by providing that those holding security interests would not be liable for injuries caused by falling planes or the parts thereof. This provision appears clearly and forthrightly to preempt any contrary state law which might subject holders of security interest to liability for injuries so incurred.” Id. at 1394.

In 1994, Congress revised Title 49 (which broadly deals with transportation) in “an Act to revise, codify,

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and enact without substantive change, certain gen-eral and permanent laws, related to transportation, as subtitles II, III, and V-X of title 49, United States Code, ‘Transportation,” and to make other technical improvements in the Code.” H.R. REP. NO. 103-180 (1993). (App. 97-103, 118, 119-120) As part of this revision, § 1404 became recodified as § 44112, the statute in issue here. (App. 119-120) The recodification deleted unnecessary verbiage and modernized the language,4 and is the first time the words “ascent” and “descent” were not in the statutory text, however the term “flight” (which is all-encompassing) remained. Nevertheless, the intent for federal preemption of theses vicarious liability claims remained untouched and intact and continues with the unchanging legis-lative history. This history states outright that the purpose of the legislation was to provide economic protection to all categories of persons who own, lease,

4 The House notes regarding revisions to § 1404 when it was enacted as § 44112 state, in their entirety:

In subsection (a), clauses (1) and (3) are derived from 49 App.:1404 (2nd-57th words). Clause (2) is added for clarity. In clause (1), the words “bona fide” are omitted as surplus. In clause (3), the word “nature” is omitted as surplus. In subsection (b), before clause (1), the words “person-al injury, death” are substituted for “any injury to or death of persons,” and the words “on land or water” are substituted for “on the surface of the earth (whether on land or water) ,” to eliminate unnecessary words. In clause (2), the words “ascent, descent, or” and “dropping or” are omitted as surplus.

H.R. REP. NO. 103-180. (App. 118, 120)

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or have a security interest in aircraft yet do not possess or control the aircraft. The legislative history makes it clear that the means to achieve this econom-ic relief is to reduce liability exposure and the cost of liability insurance. This, in turn, promotes the growth of the aviation industry by reducing costs to not only the owners, lessors, and lenders, but also to the operators.

C. An interpretation that § 44112 has a lim-

ited preemptive effect ignores the leg-islative history of both § 44112 and the Uniform Aeronautics Act, and it re-quires reliance on a single, confusing, and inconsistent, statement in a 1948 House report

(1) The legislative history of the short-lived Uniform Aeronautic Act supports federal preemption by § 44112 and its predecessors, § 1404 and § 504

When the Florida Supreme Court decided that a state is not preempted from permitting certain vicari-ous liability claims against an aircraft owner, lessor, or lender, it not only overlooked Congressional state-ments of preemptive intent, it apparently did not consider the legislative history of the Uniform Aero-nautics Act and the fact that this act was withdrawn by the National Conference of Commissioners on Uniform State Laws in August, 1943. Uniform Laws Annotated, Vol. 11, Motor Vehicles – Aeronautics

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(1938), “supplement” p. 11; National Conference of Commissioners on Uniform State Laws, Conference Handbook, 1943, pp. 66-67. (App. 181-184, 203-204)

A committee of the National Conference of Com-missioners first met in 1921 to review aviation legis-lation pending on both the state and federal level and recommended a tentative draft of a proposed Uniform Law for Aeronautics. National Conference of Com-missioners on Uniform State Laws, Conference Hand-book, 1922, pp. 313-328. (App. 121-145) After this,

In 1922 the Conference promulgated and adopted a Uniform State Act for Aeronautics, which was adopted in twenty-two states and which served an excellent purpose for that earlier era in the development of aviation. Matters progressed so fast that the Act was withdrawn, and in 1930 the Conference adopted the Uniform Air License Act, which was adopted by five states.

Then the Conference began the preparation of a Uniform Aeronautical Code. The first Act of that Code was a Uniform Airport Zoning Act, adopted in 1935 and subsequently adopted by two states. The same year the Conference approved a Uniform Aeronautical Regulatory Act which was adopted by two states. In 1938 the Conference approved three Acts which completed the code: the first Act on Uniform Aviation Liability, the second on Uniform Air Flight, and the third on Uniform Air Jurisdiction.

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In 1938, . . . Congress made provision for the Civil Aeronautics Board. As a result of the promulgation of these last three Acts com-pleting the Code, with their far-reaching provisions respecting liability in case of air accidents and other things, the Board em-barked . . . on a study of the whole question of aviation liability legislation. The Execu-tive Committee of the Conference, by reason of that study and realizing that the Board had facilities and means to study the ques-tion so thoroughly . . . withheld these three Acts and the other two Acts which had al-ready been promulgated and approved by the American Bar Association, pending further study and pending the release of this report.

National Conference of Commissioners on Uniform State Laws, Conference Handbook, 1941 p. 115. (App. 186-187)

At this same conference, the Commissioners were addressed by a member of the Civil Aeronautics Board, who continued reciting the history of aviation legislation up to that date and the intent for broad federal preemption of the burgeoning field of aviation:

Congress, you will remember, in the Civil Aeronautics Act of 1939, that year had en-tirely revolutionized the federal attitude to-wards the whole subject of regulation. That was just before Munich, but the forces which were gathering in Europe were obvious and known to the government at Washington, and it was felt necessary that there should be built up under federal guidance and aid in

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this country, an air transportation system of the quality that would be adequate to the purposes not only of the postal service, to which the federal policy had been confined theretofore, but should also be adequate to the needs of our domestic and our foreign commerce and to the needs of our national defense.

. . .

We thought we saw that this subject would vitally affect our capacity and the efficacy of the administration of the new national policy and we met with the members of your Aero-nautical Code committee . . . We presented to your Committee the intention of the Civil Aeronautics Board to make a comprehensive survey of the whole subject matter and to of-fer conclusions and recommendations as to the appropriate course to follow. We asked the Committee to consider that in determin-ing its plans.

Your Committee, in a fine spirit of coopera-tion, agreed with us as to that proposal, the then current proposal, to submit to the legis-latures of the states the product of the work of the Aeronautical Code committee of this Conference was very intimately tied up in national importance with the new national policy, and offered very kindly to defer action until the Board could conduct this national survey.

Let me say that they have been long suffer-ing in waiting upon the Board in that matter.

18

Not long after, you will remember, the condi-tions which now have become acute gathered over the world and we found ourselves at Washington with our hands full, trying to regulate airlines in every state and air transportation in every state of the American union, in every state in Central and South America, in Alaska, in China, across the At-lantic, to the South Seas, in Australia, in Asia, across the Pacific, and practically all over the world where the great development of American flying air transportation had reached. . . .

. . .

The Civil Aeronautics Act of 1938, which was our mandate to broaden that jurisdiction, I think, set it at the outermost boundaries of the congressional jurisdiction over commerce with this nation and foreign nations, for it declared – I am speaking of the safety regu-latory power of the Board, not of the econom-ic power – that the federal agency should have jurisdiction not only of all interstate commerce on the federal airways and off the federal airways and off the foreign airways, but also it should have jurisdiction over all navigation that directly affected such inter-state air commerce and over all navigation off the airways that might endanger such in-terstate air commerce.

. . .

. . . [I]t has been the practice of this administrative agency never to issue a regulation

19

affecting the aeronautical industry, or affect-ing the interest of the nation, without a pub-lic meeting or by brief, or both, upon the proposal. So when we formulated this tenta-tive regulation to put all of the air space un-der federal control in so far as control of pilots and air crafts were involved, we set the matter down for public hearing. . . .

It may interest you to know that there was not a single discordant note in that public hearing. So far as that hearing is concerned, the Civil Aeronautics Board would have the right to assume that everybody interested in it in the United States was in favor of this broad assertion of the federal power which had been delegated by the Congress to this Board.

National Conference of Commissioners on Uniform State Laws, Conference Handbook, 1941 p. 116-119. (App. 188-190, 192-193, 194)

Following this address, the Uniform Aviation Liability Act, the Uniform Air Flight Act, and the Uniform Air Jurisdiction Act “were withheld by the Executive Committee because Congress . . . had created the Civil Aeronautics Board which was mak-ing a comprehensive study of the whole subject. (Handbook, 1941, pp. 114-115; 186-188).” National Conference of Commissioners on Uniform State Laws Conference Handbook, 1943, p. 67. (App. 186-187, 203) Two years later, in 1943, the National Conference of Commissioners on Uniform State Laws withdrew the Uniform Aeronautics Act and the other proposed

20

aviation-related uniform acts “from the active list of Uniform Acts recommended for adoption by the states.” Uniform Laws Annotated, Vol. 11, Motor Vehicles – Aeronautics, 1938, “supplement” pp. 10-14. (App. 179-184) The records of the National Confer-ence of Commissioners shows it has been silent on this issue since 1943. Withdrawal of the National Conference of Commissioners from this area of law is tacit recognition of complete federal preemption of aviation liability. The decision of the Florida Supreme Court depends on its assumption that in 1948, 1958, 1959, and 1994 – each time that Congress considered this vicarious liability issue that is of paramount importance to the aviation industry – that it deferred to the 1922 work by the National Conference of Commissioners that was later withdrawn.

(2) The Florida Supreme Court’s anal-

ysis of the 1948 House Report relat-ing to enactment of § 504 is flawed

When examining the legislative history of § 44112, the Florida Supreme Court focused on a narrow and inconsistent statement in the 1948 House Report 80-2091 relating to the enactment of § 504 to amend the Civil Aeronautics Act of 1938. (App. 61-64) The relevant Congressional explanation for this new provision states, in part:

Provisions of present Federal and State law might be construed to impose upon persons who are owners of aircraft for security pur-poses only, or who are lessors of aircraft,

21

liability for damages caused by the operation of such aircraft even though they have no control over the operation of the aircraft. This bill would remove this doubt by provid-ing clearly that such persons have no liability under such circumstances.

The relief thus provided from potential un-just and discriminatory liability is necessary to encourage such persons to participate in the financing of aircraft purchases.

The provisions of present law above referred to are section 1(26) of the Civil Aeronautics Act of 1938 and section 5 of the Uniform Aer-onautics Act.5

Section 1(26) of the Civil Aeronautics Act of 1938 reads as follows:

‘operation of aircraft’ or ‘operate aircraft’ means the use of aircraft for the purpose of air navigation and includes the navigation of aircraft. Any person who causes or authoriz-es the operation of aircraft, whether with or without the right of legal control (in the ca-pacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in

5 The Civil Aeronautics Act of 1938 (enacted by Congress) is separate and distinct from the Uniform Aeronautics Act that was approved by the National Conference of Commissioners on Uniform State Laws in 1922.

22

the operation of aircraft within the meaning of this Act.6

Section 4 of the Uniform Aeronautics Act is in force in at least 10 States [footnote listing the states is omitted] and Hawaii. This sec-tion reads, in part, as follows: . . .

Pub. L. 80-656, H.R. REP. NO. 80-2091 (1948). (App. 62-63)

The clear intent to preclude vicarious liability claims against aircraft owners and lessors who nei-ther possess nor control the aircraft is supported by both the statement of Congressional concern for these owners and lessors, as well as the reference to § 1(26) of the Civil Aeronautics Act of 1938 that provides no distinction between passengers and persons outside an aircraft who might wish to pursue a vicarious liability claim.

The reference to the Uniform Aeronautics Act that immediately follows in this House Report is, however, confusing. When this Act is first mentioned, it is followed by a reference to § 5. (App. 62) Next, there is a state-ment that § 47 will be quoted. (App. 63) However, the

6 It should be noted that the federal Civil Aeronautics Act of 1938 makes no distinction between passengers inside the aircraft and persons outside the aircraft. 7 Section 4 of the Uniform Aeronautics Act states: “Lawfulness of flight. – Flight in aircraft over the lands and waters of this State is lawful . . . unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. . . .” (App. 160)

23

reference to § 4 is followed by a recitation to the language of § 58 (App. 63), thus raising a question as to which (or both) provisions of this Act were to be constrained. Research has not disclosed an explanation for any reference in the House Report to the Uniform Aeronautics Act or to any of its sections. The reference to this Act is especially curious in light of the fact that it was state (not federal) law, it had been passed by only ten states, and it had been withdrawn from recommendation for passage by any additional states.

The Florida Supreme Court said that because § 69 and § 710 of the Uniform Aeronautics Act were not

8 Section 5 of the Uniform Aeronautics Act states: “Damage on Land. – The owner of every aircraft which is operated over the lands or water of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the in-jury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced land-ing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in Section 5.” (App. 163) 9 Section 6 of the Uniform Aeronautics Act states: “Collision of Aircraft. – The liability of the owner of one aircraft to the owner of another aircraft, or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air, shall be de-termined by the rules of law applicable to torts on land.” (App. 168) 10 Section 7 of the Uniform Aeronautics Act states: “Jurisdic-tion over Crimes and Torts. – All crimes, torts and other wrongs

(Continued on following page)

24

specifically mentioned in the House report, that a state’s vicarious liability law remained intact where the claim was brought by a passenger in the aircraft. This is irreconcilable with the legislative history showing that Congress wanted to preempt, and thereby extinguish, all claims of vicarious liability against owners or lenders who were not in possession or control of aircraft at the time of an accident that had existed in § 1(26) of its Civil Aeronautics Act of 1938.

The Florida Supreme Court’s analysis also ap-pears to overlook the statement of Congressional intent that immediately follows the recitation from § 5 of the Uniform Aeronautics Act where Congress states it is enacting § 504 to “make it clear” that the owner or lessee “would not be liable when he is not in possession or control of the aircraft” without any distinctions or limitations:

This provision [§ 5 of the Uniform Aero-nautics Act] thus imposes absolute liability on owners of aircraft for damage caused on the surface of the earth. It is susceptible of a construction which would impose liability upon any person registered as owner, even though he holds title only as security under a mortgage or similar security instrument or as lessor under an equipment trust. If such

committed by or against an aeronaut or passenger while in flight over this State shall be governed by the laws of this State. . . .” (App. 169)

25

interpretation were adopted, the security ti-tle holder could become liable for extensive damage on the surface caused by the opera-tion of the aircraft. An owner in possession or control of aircraft, either personally or through an agent, should be liable for dam-ages caused. A security owner not in posses-sion or control of the aircraft, however, should not be liable for such damage. This bill would make it clear that this generally accepted rule applies and assures the security owner or lessee, that he would not be liable when he is not in possession or control of the aircraft.

H.R. REP. NO. 80-2091 (1948). (App. 63-64)

D. Limiting the preemptive scope of § 44112

is inconsistent with other federal avia-tion-related laws

If one looks beyond the instant provision to other aviation-related laws, federal preemption has been the trend. Both the Airlines Deregulation Act of 1978 (“ADA”) and the General Aviation Revitalization Act of 1994 (“GARA”) have expressly prohibited states’ control of aviation: the former bars states from regu-lation of rates, routes, or services of commercial aircraft; the latter preempts state laws relating to product liability claims involving general aviation aircraft. It is not coincidental that Congress’ last review of § 44112 and the decision to continue its broad preemptive scope occurred at the same time as the passage of GARA and long after the ADA. It

26

would be inconsistent, indeed, for Congress to intend a tortured interpretation resulting in a limited scope of § 44112 as announced by the Florida Supreme Court at the same time enacting legislation to broadly protect and promote the aviation industry through limitations of liability.

E. Public policy requires federal preemp-

tion so that owners, lessors, and lend-ers who are not in possession or control of aircraft are not subject to conflicting state-law based vicarious liability claims

For decades, aircraft leasing (whether a financ-ing or operating lease) has been an important part of the aviation industry. A significant portion of the world’s aircraft are operated today under some form of lease, with estimates ranging from 30% to over 50%. The Airline Monitor, Financial Characteristics of Airlines (2006); Bureau of Transp. Stats., U.S. Dept. of Transp., Schedule B-43 Aircraft Inventory 46-58, 173-78 (2006). Under the common finance/ lease arrangements, “the lessor has no more than a security interest in the plane and the lessee has ‘absolute dominion and control over the aircraft to do with as he will even as against the [lessor] so long as payments are made.’ The lessor is the owner only for aircraft registration purposes. Accordingly, a finance or capital lease is typically made for the life of the aircraft.” Is Lessor More? Lexsee 75 J. Air L. & Com. 69 at 72, citing Legal Opinion as to Whether Lease of

27

an Aircraft Conveyed Under a Finance Lease is the Owner of the Aircraft for Purposes of United States Aircraft Registration, 46 Fed. Reg. 18,877 (Mar. 26, 1981).

Any ability for states to independently create laws relating to vicarious liability of owners, lessors, or lenders who do not possess or control the aircraft opens the door for precisely the type of inconsistency and vagaries that Congress abolished through enact-ment of § 44112 and its predecessors. The interpreta-tion proffered by the Florida Supreme Court and other state courts will cause significant harm, ex-pense, and uncertainty to the aviation industry – precisely the opposite economic impact intended by Congress.

These concerns affect all levels of the aviation industry – not only large commercial airlines but also smaller commercial aviation enterprises such as the instant long term lease of this aircraft. There is fundamentally no difference between the long term lease of an aircraft to a large commercial airline or to anyone else. In each instance, the owner, lessor, or lender does not possess or control the aircraft that is subject to the long term lease and realistically has no ability to dictate day-to-day use, flight plans, pilots, passengers, maintenance, or other aspects of the aircraft’s operation.

The artificial distinction between potential vicari-ous liability to those inside and outside of a crashed aircraft is unsupportable by the plain meaning of the

28

statute and it eviscerates the purpose of the statute. A non-possessory lessor or lender cannot reasonably set lease or loan rates based on the unpredictability of where a crash might occur and how this variable locale can affect what law might apply. Similarly, liability insurers cannot grant rate reductions to owners, lessors, or lenders where there is a patch-work of liability laws and exposure spread among the various states. In every instance, there will be some-one inside the aircraft who is injured or killed when a plane crashes. A statutory interpretation that permits exposure to claims of vicarious liability if a plane happens to crash in certain states – where it other-wise might never touch the ground – is illogical. By contrast, only in rare circumstances will an airplane crash cause personal injury to someone “on land or water” who is outside the aircraft. The statute is effectively meaningless if it is meant to apply only in such unusual and infrequent circumstance.

It is also critically important to note that § 44112 does not wholly and completely relieve an owner, lessor, or secured party from liability. Rather, § 44112 applies only in those situations in which they are not in possession or control of the aircraft at the time of the incident. Any owner or other entity who is actu-ally operating the aircraft or otherwise is in possession or control of the aircraft (such as through the actions of employees or agents) is not subject to the protec-tion and preemption established by § 44112, and this statute does not bar pursuit of a claim of liability and damages in that situation. This statute does not

29

apply, for example, to Ferrer, whose employee was piloting and in control of the aircraft.

II. A CLEAR STATEMENT OF FEDERAL

PREEMPTION OF STATE LAW BY THIS COURT WILL RESOLVE A CONFLICT IN THE LAW

The Florida Supreme Court’s decision conflicts with the holdings of those federal courts that have considered the scope and application of § 44112. The federal courts that have addressed the issue of feder-al preemption have universally concluded that based on either plain wording and/or legislative history, § 44112, and its predecessors (§ 1404 and § 504) sup-port federal preemption to bar state law claims of vicarious liability against owners, lessors, or lenders who neither possess nor control the operation of the aircraft. Rogers v. Ray Gardner Flying Services, Inc., 435 F.2d 1389 (5th Cir. 1970); In re Lawrence W. Inlow Accident Litigation, 2001 WL 331625 (S.D. Ind. 2001) and Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir. 1994).

The state court decisions are, however, in conflict on the issue of whether § 44112 establishes field preemption. The cases of Mangini v. Cessna Aircraft Co., 2005 WL 3624483 (Conn. Super. Ct. 2005) and Esheva v. Siberia Airlines, 499 F.Supp.2d 493 (S.D.N.Y. 2007) acknowledged field preemption pursuant to § 44112. Decisions such as Storie v. Southfield Leas-ing, Inc., 282 N.W.2d 417 (Mich. Ct. App. 1979), aff ’d

30

sub nom. Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843 (Mich. 1982); Retzler v. Pratt & Whitney Co., 723 N.E.2d 345 (Ill. App. Ct. 1999) and Coleman v. Windham, 2005 WL 1793907 (R.I. Super. Ct. 2005) have decided that federal preemption does not apply. There will doubtlessly be ongoing litigation with conflicting rationales and outcomes, plus unnecessary effort and expense to the courts and parties, until such time as this Court resolves this issue.

--------------------------------- ♦ ---------------------------------

CONCLUSION

For the reasons set forth herein, it is respectfully requested that this Honorable Court exercise its discretion and accept this case for review.

Respectfully submitted,

SHELLEY H. LEINICKE, ESQUIRE WICKER, SMITH, O’HARA, MCCOY & FORD, P.A. 515 E. Las Olas Boulevard SunTrust Center, Suite 1400 Ft. Lauderdale, FL 33301 Phone: (954) 847-4800 Fax: (954) 760-9353 [email protected]

Counsel for Petitioner

App. 1

Supreme Court of Florida

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No. SC10-694

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JOHN K. VREELAND, etc., Petitioner,

vs.

DANNY FERRER, etc., et al., Respondents.

[July 8, 2011]

LEWIS, J.

Petitioner John K. Vreeland seeks review of the decision of the Second District Court of Appeal in Vreeland v. Ferrer, 28 So. 3d 906 (Fla. 2d DCA 2010), on the basis of express and direct conflict with the decision of this Court in Orefice v. Albert, 237 So. 2d 142 (Fla. 1970). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEDURAL HISTORY

Danny Ferrer entered into an agreement to lease an airplane from Aerolease of America, Inc. (Aerolease) for a period of one year. On January 14, 2005, after taking off from an airport in Lakeland, Florida, the plane crashed. The pilot, Donald Palas, and his passenger, Jose Martinez, were killed in the crash. John Vreeland, in his capacity as administrator ad litem and personal representative of the Martinez

App. 2

estate, filed a wrongful death action against Aerolease.1 In support of the action, Vreeland first contended that Aerolease, as owner of the aircraft, was liable and responsible for the negligence of Palas in the operation and inspection of the aircraft. Sec-ond, Vreeland asserted that prior to the transfer of the aircraft to Ferrer, Aerolease negligently per-formed inspections and maintenance on the aircraft such that it was in a defective condition, which direct-ly contributed to the crash. Lastly, Vreeland claimed that Aerolease published false information concerning the condition of the aircraft, which Ferrer relied upon. According to Vreeland, the actual condition of the aircraft significantly contributed to the crash.

Aerolease moved for summary final judgment, contending that a provision of federal law, 49 U.S.C. § 44112 (1994), preempted Florida law. Section 44112, titled “Limitation of Liability,” provides, in pertinent part:

(b) Liability. – A lessor, owner, or se-cured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft en-gine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of –

1 A number of other defendants, including Danny Ferrer, were named in the action but those defendants are not relevant to the issue presented here.

App. 3

(1) the aircraft, engine, or propeller; or

(2) the flight of, or an object falling from, the aircraft, engine, or propeller.

49 U.S.C. § 44112 (1994). The trial court held a hear-ing and, on September 25, 2007, entered a summary final judgment in favor of Aerolease. The trial court noted that under Florida’s “dangerous instrumen-tality” doctrine, the owner or lessor of an aircraft is vicariously liable for the negligent conduct of a pilot. However, the court concluded that 49 U.S.C. § 44112 preempted Florida law and, because Aerolease was not in actual possession or control of the aircraft at the time of the crash, the company was not responsi-ble under the provisions of the federal statute.

Vreeland filed a motion for reconsideration, asserting that the trial court’s decision on vicarious liability effectively overruled the 1970 decision of the Florida Supreme Court in Orefice v. Albert, 237 So. 2d 142 (Fla. 1970). In Orefice, the Court held that an airplane was a dangerous instrumentality, and a wrongful death action could properly proceed against the co-owner of an airplane on the basis of vicarious liability. See 237 So. 2d at 145-46. Vreeland also asserted that Aerolease was in possession and control of the aircraft at the time of the alleged negligent maintenance and inspection and, therefore, federal law did not preempt this claim. The trial court denied reconsideration.

On appeal, the Second District affirmed the decision of the trial court to the extent it held that the

App. 4

vicarious liability claim was preempted by federal law, but reversed the entry of the summary final judgment on the claim of negligent maintenance and inspection. See Vreeland v. Ferrer, 28 So. 3d 906, 912-13 (Fla. 2d DCA 2010).

With regard to vicarious liability, the Second District examined the legislative history of the statu-tory predecessors to 49 U.S.C. § 44112, and it con-cluded that the provision was enacted to shield an owner or lessor of a civil aircraft from vicarious liability under state law whenever the aircraft is not under his or her control. See 28 So. 3d at 909. The Second District distinguished this Court’s decision in Orefice on two bases. First, the district court reasoned that the 1970 decision did not mention a predecessor statute to section 44112 that was in effect at the time that decision was issued. See id. at 912. The absence of discussion concerning that predecessor statute, section 1404, in Orefice led the district court below to conclude that the parties failed to raise the issue of preemption before the Florida Supreme Court or the lower courts in Orefice. See id. Second, the district court explained:

The Orefice court’s ruling that the dangerous instrumentality law imposed vicarious liabil-ity on owners of aircraft was based in part on its observation that Chapter 330, Florida Statutes (1970), reflected “a specific policy by the State of Florida to license and otherwise see after aircraft safety.” Orefice, 237 So. 2d

App. 5

at 145. The Florida statutes addressing air-craft safety have since been repealed.

Id.

With regard to the negligent inspection and maintenance claim, however, the Second District reversed the entry of the summary final judgment. See id. at 913. The court below was of the opinion that the purpose of section 44112 was to shield an owner or lessor from the negligence of another when the aircraft is not in the possession or control of the owner or lessor. See id. The statute was not intended to shield owners or lessors from negligence while in control or possession of the aircraft. See id. The district court concluded that the claim that Aerolease was negligent with regard to maintenance and in-spection while the aircraft was in its possession was not preempted by federal law and, therefore, the trial court erred when it entered summary final judgment on this claim. See id.

Vreeland filed a petition with this Court seeking review of the Second District’s decision on the basis that it expressly and directly conflicts with the deci-sion of this Court in Orefice, and we accepted review.

ANALYSIS

Whether state law is preempted by federal law is a pure question of law that is subject to de novo review. See Talbott v. American Isuzu Motors, Inc.,

App. 6

934 So. 2d 643, 644 (Fla. 2d DCA), review denied, 946 So. 2d 1071 (Fla. 2006).

Florida Law – The Dangerous Instrumentality Doctrine

The dangerous instrumentality doctrine has been a part of Florida common law for almost one hundred years. In 1920, the Florida Supreme Court considered whether a corporation could be held responsible for the negligence of an operator who injured another while driving an automobile owned by the corpora-tion. See Southern Cotton Oil Co. v. Anderson, 86 So. 629, 631 (Fla. 1920). In its analysis, the Court articu-lated what is now known as the dangerous instru-mentality doctrine and concluded that the doctrine is applicable to motor vehicles:

The principles of the common law do not permit the owner of an instrumentality that is not dangerous per se, but is peculiarly dangerous in its operation, to authorize an-other to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle . . . properly operated when it is by his authority on the public highway.

. . . .

An automobile being a dangerous ma-chine, its owner should be responsible for the manner in which it is used; and his liability should extend to its use by any one with his consent. He may not deliver it over to any

App. 7

one he pleases and not be responsible for the consequences.

Id. at 632, 635 (quoting Anderson v. So. Cotton Oil Co., 74 So. 975, 978 (Fla. 1917); Ingraham v. Stocka-more, 118 N.Y. Supp. 399, 401 (N.Y. Sup. Ct. 1909)).

In a subsequent decision, this Court held that an individual who rented vehicles as part of a business was responsible for the negligence of the driver who rented the vehicle. See Lynch v. Walker, 31 So. 2d 268, 271 (Fla. 1947). In Susco Car Rental System of Flori-da v. Leonard, 112 So. 2d 832 (Fla. 1959), this Court determined that a car rental agency was responsible under the dangerous instrumentality doctrine for the operation of a motor vehicle where the vehicle was driven by a person not named in the rental contract, even though the individual who rented the car had agreed in the contract to be the sole driver. See id. at 835 (“The fact that the owner had a private contract . . . with the renter cannot make such restrictions a bar to the rights of the public. The restrictions agreed upon do not change the fact that the automobile was being used with the owner’s consent.”).

Recently, the Fifth District Court of Appeal re-iterated the concept and framework of the dangerous instrumentality doctrine and the purpose behind it:

The doctrine imposes strict liability upon the owner of a motor vehicle by requiring that an owner who “gives authority to another to operate the owner’s vehicle, by either express or implied consent, has a nondelegable

App. 8

obligation to ensure that the vehicle is operated safely.” Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000). The doctrine is intended to foster greater financial responsibility to pay for in-juries caused by motor vehicles because the owner is in the best position to ensure that there are adequate resources to pay for damages caused by its misuse. Id. at 62. The doctrine also serves to deter vehicle owners from entrusting their vehicles to drivers who are not responsible by making the owners strictly liable for any resulting loss.

. . . Liability of the owner is said to be “strict” because a plaintiff need not prove that an owner negligently entrusted the vehicle to its operator for liability to attach. However, the doctrine is distinguished from strict liability for ultra-hazardous activity, because the plaintiff must prove some fault, albeit on the part of the operator, which is then imputed to the owner under vicarious liability principles. Id.

Burch v. Sun State Ford, Inc., 864 So. 2d 466, 470 (Fla. 5th DCA) (footnote omitted), review dismissed, 889 So. 2d 778 (Fla. 2004).

It was a federal court in 1951 that first applied Florida’s dangerous instrumentality doctrine to aircraft. Specifically, in Grain Dealers National Mutual Fire Insurance Co. v. Harrison, 190 F.2d 726 (5th Cir. 1951), an airplane passenger filed an action against the company that owned the aircraft for injuries suffered due to the negligence of the pilot.

App. 9

See id. at 727. The Fifth Circuit Court of Appeals noted that there was no state decisional law that applied the doctrine to aircraft. See id. at 729.2 However, the federal appellate court reviewed state judicial decisions that applied the dangerous instru-mentality doctrine to motor vehicles and ultimately concluded:

Our examination of these authorities and the reasoning underlying their pronouncements leave no room for doubt that, under Florida law, by which we are here governed, the air-plane should be similarly classified with the automobile as “a dangerous agency when in operation.” We can perceive no logical basis for any difference of classification which would authorize a holding that the rule of “dangerous agency” or “dangerous machine,” which the Florida law applies to automobiles in operation, should be relaxed in the case of an airplane. This rule imposes liability upon the defendant for the acts and omissions of the pilot of its airplane which the jury was authorized to, and did, find constituted neg-ligence.

Id. at 729-30 (emphasis supplied). Subsequently, this Court in Orefice v. Albert held that “an airplane, like an automobile, is a dangerous instrumentality when in operation.” 237 So. 2d at 145. This Court concluded

2 The Eleventh Circuit Court of Appeals was not created until 1981. Prior to that time, Florida was under the jurisdiction of the Fifth Circuit Court of Appeals.

App. 10

that the owner of an airplane who was not in control of the aircraft at the time of a crash that caused the death of a passenger could be held vicariously liable for the negligent conduct of the co-owner pilot. See id. at 146. It is clear that the dangerous instrumentality doctrine applies to aircraft in Florida.

Federal Preemption Law

With regard to federal preemption, the United States Supreme Court has stated:

“Pre-emption may be either express or im-plied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its struc-ture and purpose.’ ” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983) (quoting Fidelity Federal Savings & Loan Assn. v. De la Cues-ta, 458 U.S. 141, 152-153 (1982), in turn quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, (1977)); see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984) (“If the in-tent of Congress is clear, that is the end of the matter; for the court . . . must give effect to the unambiguously expressed intent of Congress” (footnote omitted)). We “begin with the language employed by Congress and the assumption that the ordinary mean-ing of that language accurately expresses the legislative purpose.” Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985).

App. 11

FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990). Where a federal law does not expressly preempt state law, preemption may be inferred only where

the scheme of federal regulation is sufficiently comprehensive to make reasonable the infer-ence that Congress “left no room” for sup-plementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Pre-emption of a whole field also will be inferred where the field is one in which “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same sub-ject.” Ibid.

Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, (1963), or when state law “stands as an ob-stacle to the accomplishment and execution of the full purposes and objectives of Con-gress,” Hines v. Davidowitz, [312 U.S. 52, 67 (1941)].

Hillsborough Cnty. v. Automated Med. Labs, Inc., 471 U.S. 707, 713 (1985) (citation omitted).

The United States Supreme Court has further ex-plained that preemption is very carefully scrutinized

App. 12

when it touches upon areas traditionally governed by state law:

[B]ecause the States are independent sover-eigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-emption cases, and particularly in those in which Congress has “legislated . . . in a field which the States have traditionally oc-cupied,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), we “start with the as-sumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Ibid.

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). In situations where Congress has legislated in an area traditionally relegated to the states, the United States Supreme Court has determined that, where the text of a preemption clause is susceptible of more than one possible interpretation, courts ordinarily apply the interpretation that disfavors preemption. See Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008).

Tort law is one area that is clearly and tradition-ally regulated by the states. See, e.g., Desiano v. Warner-Lambert & Co., 467 F.3d 85, 94 (2d Cir. 2006) (holding that state-based tort liability falls within a state’s prerogative to regulate matters of health and safety, which “is a sphere in which the presumption against preemption applies, indeed, stands at its strongest”), aff ’d by an equally divided court sub

App. 13

nom. Warner-Lambert Co., LLC v. Kent, 552 U.S. 440 (2008) (per curiam); Abbot v. American Cyanamid Co., 844 F.2d 1108, 1112 (4th Cir. 1988) (“The pre-sumption against preemption is even stronger against preemption of state remedies, like tort recoveries, when no federal remedy exists.” (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984))). Con-sistent with this principle, the federal statutes that govern aviation commerce and safety contain a sav-ings clause which provides: “A remedy under this part is in addition to any other remedies provided by law.” 49 U.S.C. § 40120(c) (1994).3

At issue in this case is whether the federal law currently codified at 49 U.S.C. § 44112 preempts Florida state law with regard to the liability of air-craft owners under the dangerous instrumentality doctrine and, if it does, how broadly the scope of that preemption covers.

3 The predecessor to section 40120(c) provided: “Nothing contained in [the Federal Aviation Act] shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.” 49 U.S.C. § 1506 (1988). Congress expressly stated that a recodification of the federal aviation statutes that occurred in 1994, which included renumbering section 1506 as section 40120(c), was not intended to substantively change those stat-utes. See 1994 U.S.C.C.A.N. 818.

App. 14

49 U.S.C. § 44112 and its Legislative History

Title 49, section 44112, of the United States Code currently provides:

§ 44112. Limitation of liability

(a) Definitions. – In this section –

(1) “lessor” means a person leasing for at least 30 days a civil aircraft, aircraft en-gine, or propeller.

(2) “owner” means a person that owns a civil aircraft, aircraft engine, or propeller.

(3) “secured party” means a person having a security interest in, or security title to, a civil aircraft, aircraft engine, or propel-ler under a conditional sales contract, equipment trust contract, chattel or corpo-rate mortgage, or similar instrument.




There is no express preemption language within this clause. Cf. 49 U.S.C. § 41713(b)(1) (1994) (“Except as

App. 15

provided in this subsection, a State, political sub-division of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this sub-part.”).

Therefore, if Florida law with regard to aircraft owner/lessor liability is preempted by section 44112, that preemption can only be implied because there is no express preemption. To determine whether and to what extent section 44112 may impliedly preempt Florida law, it is necessary to review and understand the legislative history behind this provision. Accord-ing to the United States Supreme Court, Congres-sional purpose is “the ultimate touchstone in every pre-emption case.” Atria Group, 129 S. Ct. at 543 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). This is especially true given the presumption against preemption of traditional state law remedies. The Eleventh Circuit Court of Appeals has held that where federal law preempts an area historically relegated to the states, even a statement of express preemption must be narrowly interpreted:

[A] strong presumption exists against finding express preemption when the subject matter, such as the provision of tort remedies to compensate for personal injuries, is one that has traditionally been regarded as properly within the scope of the states’ rights.” Taylor v. General Motors Corp., 875 F.2d 816, 823

App. 16

(11th Cir. 1989) (citation omitted). Thus, ex-press preemption clauses must be construed narrowly.

Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir.) (alteration in original) (footnote omitted), cert. denied, 525 U.S. 1018 (1998). Accordingly, we con-clude that any implied preemption of state law must also be narrowly construed.

In 1948, Congress enacted section 504 of the Civil Aeronautics Act, the original federal provision limit-ing the liability of aircraft owners and lessors. See Act of June 16, 1948, Pub. L. No. 482-656, 62 Stat. 470. The reasons for enacting section 504 were articulated in great detail in the House Report that accompanied the legislation. Due to the importance of the report in the determination of Congressional intent, we must analyze its full text, which provides:

This bill proposes to insert after section 503 of the Civil Aeronautics Act of 1938 a new section 504, as follows:

Sec. 504. No person having a securi-ty interest in, or security title to, any civil aircraft under a contract of condi-tional sale, equipment trust, chattel or corporate mortgage, or other instrument of similar nature, and no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft so leased, for any injury to

App. 17

or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, or by the ascent, descent, or flight of such aircraft or by the drop-ping or falling of an object therefrom, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage, or loss.

Provisions of present Federal and State law might be construed to impose upon per-sons who are owners of aircraft for security purposes only, or who are lessors of aircraft, liability for damages caused by the operation of such aircraft even though they have no control over the operation of the aircraft. This bill would remove this doubt by pro-viding clearly that such persons have no lia-bility under such circumstances.

The relief thus provided from potential unjust and discriminatory liability is neces-sary to encourage such persons to participate in the financing of aircraft purchases.

The provisions of present law above re-ferred to are section 1(26) of the Civil Aero-nautics Act of 1938 and section 5 of the Uniform Aeronautics Act.


(26) “operation of aircraft” or “op-erate aircraft” means the use of aircraft

App. 18

for the purpose of air navigation and includes the navigation of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of this Act.

Section 5 of the Uniform Aeronautics Act is in force in at least 10 States and Hawaii.4 That section reads, in part, as follows:

The owner of every aircraft which is operated over the lands or the waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, de-scent, or flight of the aircraft, or the dropping or falling of any object there-from, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to per-sons or property, both owner and lessee shall be liable, and they may be sued jointly or either or both of them may be sued separately.

4 Hawaii did not become a state until 1959, more than ten years after the enactment of section 504. See http://hawaii.gov/ lrb/hndbook/hbk2.html (last visited Mar. 8, 2011).

App. 19

This provision thus imposes absolute liability on owners of aircraft for damage caused on the surface of the earth. It is susceptible of a construction which would impose liability upon any person registered as owner, even though he holds title only as security under a mortgage or similar security instrument or as lessor under an equipment trust. If such interpretation were adopted, the security title holder could become liable for extensive damages on the surface caused by the operation of the aircraft. An owner in possession or control of aircraft, either per-sonally or through an agent, should be liable for damages caused. A security owner not in possession or control of the aircraft, however, should not be liable for such damages. This bill would make it clear that this generally accepted rule applies and assures the securi-ty owner or lessee, that he would not be lia-ble when he is not in possession or control of the aircraft.

The limitation with respect to leases of 30 days or more, in case of lessors of aircraft, was included for the purpose of confining the section to leases executed as a part of some arrangement for financing purchases of air-craft. Any lease in connection with any such arrangement would almost certainly be for a period in excess of 30 days.

1948 U.S.C.C.A.N. 1836-37 (emphasis supplied). The language clearly references airplane owner/lessor liability for damages to persons and property that are on the surface of the earth.

App. 20

In 1958, section 504 was incorporated into the newly enacted Federal Aviation Act. See Fed. Aviation Act, Pub. L. No. 85-726 § 504, 72 Stat. 731, 774 (1958). It was codified in the United States Code as 49 U.S.C. § 1404. In 1959, section 1404 was amended to broaden the protections of the provision to include not only owners or lessors of aircraft, but also owners and lessors of aircraft engines and propellers. See Act of July 8, 1959, Pub. L. No. 86-81 § 2, 73 Stat. 180. Section 1404 then remained unchanged until 1994 when, as part of a revision of Title 49 of the United States Code, which governs transportation, it was merely reworded and recodified without substantive change as section 44112(b). See Act of July 5, 1994, Pub. L. No. 103-272 § 1, 108 Stat. 745, 1167. The House Report that accompanied the 1994 recodi-fication specifically stated that the purpose of the revision to Title 49 was “to revise, codify, and enact without substantive change certain general and permanent laws related to transportation . . . and to make other technical improvements in the Code.” 1994 U.S.C.C.A.N. 818 (emphasis supplied). Given that the House Report expressly states that the revision of Title 49 was not intended to affect any substantive change, the Congressional intent behind the enactment of section 504 in 1948 still remains.

The Preemptive Scope of Section 44112

Every version of the owner/lessor liability federal statute since its enactment in 1948 has referenced injury, death, or property damage that has occurred

App. 21

on land or water, or on the surface of the earth. At no time has Congress removed this geographic require-ment from the federal statute. With regard to statu-tory interpretation, the United States Supreme Court has stated that it is the duty of a court “to give effect, if possible, to every clause and word of a statute.” United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). To fulfill this directive, we must deter-mine the Congressional intent embodied in this very specific geographic language.

The words “on land or water” or “on the surface of the earth” may be read to specify that the limitation on liability only applies to death, injury, or damage that is caused to people or property that are physically on the ground or in the water. Specifically, the limita-tion on liability would apply only to individuals and property that are underneath the aircraft during its flight, ascent, or descent. Under this interpretation, Aerolease would not benefit from any limitation articulated by section 44112 because Martinez was not “on land or water” at the time of the crash – he was a passenger inside the aircraft.

To determine if such interpretation is consistent with Congressional intent, we return to the circum-stances that led to the enactment of section 504 in 1948. The House Report that accompanied section 504 criticized a law in effect in multiple states that imposed “absolute liability on owners of aircraft for damage caused on the surface of the earth.” 1948 U.S.C.C.A.N. 1836, 1837 (emphasis supplied).

App. 22

As previously stated, section 5 of the Uniform Aeronautics Act (UAA) allowed absolute liability for “injuries to persons or property on the land or water beneath.” Id. at 1836-37 (emphasis supplied). The specific language of the UAA that imposed absolute liability for injuries to people or property beneath the plane supports the more narrow interpretation of the phrase “on land or water” in current section 44112. Indeed, the title of section 5 of the UAA was “Damage on Land.”

Although Aerolease contends that Congress in-tended for section 44112 to cover any injuries, death, or damages caused by a plane striking the surface of the earth, Vreeland is correct that the Uniform Aeronautics Act contained a separate section that addressed injuries to airmen or passengers who were in the plane at the time of the incident. In fact, as demonstrated below, the UAA viewed the tort rights of individuals who were aboard the aircraft quite differently from those of people on the ground be-neath the aircraft:

§ 4. Lawfulness of flight. – Flight in aircraft over the lands and waters of this State is lawful . . . unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. . . .

§ 5. Damage on land. – The owner of every aircraft which is operated over the lands or the waters of this State is absolutely liable for injuries to persons or property on

App. 23

the land or water beneath, caused by the as-cent, descent or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property in-jured. If the aircraft is leased at the time of the injury to persons or property, both owner and lessee shall be liable, and they may be sued jointly or either or both of them may be sued separately. An aeronaut who is not the owner or lessee shall be liable only for the consequences of his own negligence. The in-jured person, or owner or bailee of the in-jured property, shall have a lien on the aircraft causing the injury to the extent of the damage caused by the aircraft or objects falling from it.

§ 6. Collision of Aircraft. – The liability of the owner of one aircraft to the owner of another aircraft, or to aeronauts or passen-gers on either aircraft, for damage caused by collision on land or in the air, shall be deter-mined by the rules of law applicable to torts on land.

§ 7. Jurisdiction Over Crimes and Torts. – All crimes, torts, and other wrongs commit-ted by or against an aeronaut or passenger while in flight over this State shall be gov-erned by the laws of this State. . . .

Unif. Aeronautics Act §§ 4-7, 11 U.L.A. 160-64 (1938) (emphasis supplied). Thus, while the UAA imposed

App. 24

absolute liability for injury, death, or damage that occurred on the land or water beneath, the rights of airplane passengers and crew members were gov-erned by the law of the state that adopted the UAA.

Congress was indisputably aware of the Uniform Aeronautics Act when it enacted section 504 in 1948. When Congress drafted language to limit the liability of airplane owners and lessors, it only addressed liability toward persons or property “on the surface of the earth.” Section 504 did not expressly address airplane passengers or airmen, even though there were separate sections of the UAA that did so. Had Congress intended to preempt the provisions of the UAA that governed the tort rights of passengers and airmen, it could have easily modified the language of section 504 to not solely address injuries or damage that occur “on the surface of the earth (whether on land or water).” We conclude that by adopting a federal law that specifically referenced damages or injuries that occur on the surface of the earth, the 1948 Congress did not intend to preempt state law with regard to injuries to passengers or aircraft crew.

Further, section 1404/44112 is not the only fed-eral aviation statute that references persons and property that are on the ground, i.e., beneath the aircraft in the course of its ascent, descent, or flight. Subsection (b) of current 49 U.S.C. § 40103 provides:

(b) Use of airspace. – (1) The Admin-istrator of the Federal Aviation Administra-tion shall develop plans and policy for the

App. 25

use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administra-tor may modify or revoke an assignment when required in the public interest.

(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for –

(A) navigating, protecting, and identi-fying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace effi-ciently; and

(D) preventing collision between air-craft, between aircraft and land or water ve-hicles, and between aircraft and airborne objects.

(Emphasis supplied.) This provision was adapted from and enacted as part of the 1958 Federal Aviation Act. See Fed. Aviation Act, Pub. L. No. 85-726 § 307, 72 Stat. 731, 749-50 (1958). Thus, at a time when the airplane owner/lessor liability provision was incorpo-rated into the FAA, Congress expressed an interest in protecting people and property on the ground. Hence, to not afford meaning to the words “on land or water” in current section 44112, this Court would not only be acting contrary to congressional intent, but would also be failing to give meaning to every word in

App. 26

section 44112. This would be completely contrary to the directive of the United States Supreme Court in Menasche. See 348 U.S. at 538-39.

Decisional Law – Preemption

Decisions with regard to how section 44112/1404 should be interpreted are varied. Some cases narrowly hold that the enactment of the preemption provision in section 1404 did not demonstrate that Congress had preempted the entire field of aviation law. For example, in Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389 (5th Cir. 1970), upon which Aerolease relies in support of its preemption claim, plaintiffs Mr. and Ms. Rogers filed a wrongful death action against Ray Gardner Flying Service for the death of their daughters in a plane crash. See id. at 1390-91. The plaintiffs conceded that no cause of action existed against the corporation for the alleged negligent conduct of the pilot under Oklahoma state law. See id. at 1391 (“The Oklahoma Supreme Court has expressly held that the negligence of the bailee of an airplane may not be imputed to the bailor.”). How-ever, the claimants asserted that 49 U.S.C. § 1301(26) (1964) operated to create a cause of action for vicari-ous liability against the corporation under Oklahoma law. See id. at 1391. Section 1301(26) defined what constitutes the “operation of aircraft”:

(26) “Operation of aircraft” or “operate aircraft” means the use of aircraft, for the purpose of air navigation and includes the navigation of aircraft. Any person who

App. 27

causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of this chapter.

Id. at 1390 n.1. The plaintiffs relied upon a provision in section 1404 to support their contention that section 1301(26) preempted state law and created a cause of action not authorized under Oklahoma state law. They asserted that “Congress purposefully considered the question of pre-empting state laws on bailment of airplanes and concluded that only those persons exempted by Section 1404 should not be held liable as operators.” Id. at 1392.

The Fifth Circuit Court of Appeals disagreed with this reverse limitation/cause of action assertion. The court concluded that, had Congress intended to preempt state tort law of bailments to broaden liabil-ity with regard to the operation of aircraft, “it was fully capable of making that intent clear directly and not by indirection requiring the circuitous reasoning plaintiffs find themselves driven to employ.” Id. at 1393 (emphasis supplied). The Fifth Circuit expressed “disbelief, in the absence of clearer evidence, that Congress would undertake to alter the tort laws of numbers of states in such oblique fashion.” Id. at 1394 (emphasis supplied) (citing Rosdail v. Western Avia-tion, Inc., 297 F. Supp. 681, 684-85 (D. Colo. 1969) (“We disagree . . . that Congress intended to alter common law principles with a definitional section of

App. 28

a regulatory scheme.”)). The Fifth Circuit ultimately held that section 1301(26) did not preempt state tort law with regard to aircraft liability, and the plaintiffs’ cause of action was governed strictly by Oklahoma state law. See id. at 1392, 1394.

Other courts have concluded that airplane owner/ lessors are not responsible for any injuries if they are not in control or possession of the aircraft at the time of the incident. For example, in Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1148 (7th Cir. 1994), also relied upon by Aerolease, the Seventh Circuit Court of Appeals affirmed a trial court entry of a summary final judgment that held an aircraft owner who leased the aircraft to another company could not be held liable under either section 1404 or Illinois bailment law for the death of the pilot. However, in affirming the trial court decision, the Seventh Circuit provided a limited text of section 1404 as follows: “[N]o lessor of any [civil] aircraft . . . under a bona fide lease of thirty days or more, shall be liable by reason of . . . his interest as lessor or owner of the aircraft . . . so leased, for any injury to or death of persons . . . caused by such aircraft unless such aircraft . . . is in the actual possession or control of such person at the time of such injury, death, damage or loss.” Id. at 1144 (alterations in original). Thus, the Seventh Circuit in Matei relied upon an incomplete version of section 1404 that omitted any reference to the actual words of the statute, which stated injuries or damage that occur “on land or water,” when it affirmed the determination of the district court that federal law

App. 29

exempted an owner/lessor from vicarious liability for the death of a pilot in a plane crash.

Finally, well-reasoned decisional law exists which expressly supports the limited preemption that we deem correct with regard to section 44112. In Storie v. Southfield Leasing, Inc., 282 N.W.2d 417, 418 (Mich. Ct. App. 1979), aff ’d sub nom. Sexton v. Ryder Truck Rental, Inc., 320 N.W. 2d 843 (Mich. 1982), an aircraft owned by Southfield Leasing crashed and a passenger on the plane, Charles Storie, was killed. At the time of the crash, the aircraft was leased to Lebow Associ-ates, for whom Storie worked. See id. at 418. The administrator of Storie’s estate filed a wrongful death action against Southfield. See id. Southfield filed a motion for summary judgment contending that 49 U.S.C. § 1404 (1970) preempted Michigan state law with regard to a lessor’s liability for airplane colli-sions. See id. The trial court entered summary final judgment on a different basis (the doctrine of lex loci delecti). See id. The administrator appealed the summary judgment, and Southfield Leasing cross-appealed with regard to the failure of the trial court to grant summary judgment on the issue of preemp-tion. See id. The Michigan Appellate Court rejected Southfield Leasing’s preemption argument and applied a reasoning which is consistent with our decision today:

We do conclude that M.C.L. s 259.180a(1); M.S.A. s 10.280(1) does, in part, conflict with the provisions of 49 U.S.C. s 1404. The latter statute shields a lessor of an airplane from

App. 30

tort liability for any injury or loss suffered “on the surface of the earth.” See Rogers v. Ray Gardner Flying Service, Inc., supra, and McCord v. Dixie Aviation Corp., 450 F.2d 1129, 1130 (CA 10, 1971). To the extent that M.C.L. s 259.180a(1); M.S.A. s 10.280(1) would impose liability for such an injury or loss upon the lessor of the airplane, the statute directly conflicts with Federal law and is preempted by it.

A close reading of 49 U.S.C. s 1404 leads us to conclude, however, that the Federal statute is inapplicable to the situation pre-sented under the circumstances of this case. In the present case the injury occurred inside the aircraft and not upon the surface of the earth. We do not read 49 U.S.C. s 1404 as preventing the states from imposing liability upon the owners of airplanes in these circum-stances.

Therefore, we conclude that M.C.L. s 259.180a(1); M.S.A. s 10.280(1) is not entirely preempted by the Federal legislation. As written, the Michigan statute imposes lia-bility upon aircraft owners both for injuries incurred on the ground and those suffered inside the aircraft. Although liability for the former species of injury must yield to the Federal mandate, the liability imposed by the statute for the latter type of injury may be severed from the statute without doing injustice to the legislative intent.

App. 31

Id. at 420-21 (emphasis supplied). The Michigan Supreme Court affirmed the lower court with little discussion directed to the holding of the Michigan appellate court with regard to federal preemption. See Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843, 847 n.2 (Mich. 1982) (“Like the Court of Appeals in Storie, we reject defendant’s argument and find that plaintiff ’s action is governed by the applicable Michigan statute.”). See also In re Lawrence W. Inlow Accident Litigation, No. IP99-0830-C 2001 WL 331625 at *9, *16 (S.D. Ind. Feb. 7, 2001) (unreported deci-sion) (concluding that, “consistent with Storie’s rea-soning,” section 44112 preempted claim against sublessor of aircraft for death of passenger who was struck and killed by a helicopter blade after he dis-embarked the helicopter).

We conclude that the preemption analysis in Storie correctly tracks the legislative history of sec-tion 44112, and is also consistent with both the well established presumption against federal preemption of state tort remedies and the savings clause that is now codified in section 40120(c) of the United States Code, which preserves “any other remedies provided by law.” Therefore, we follow the reasoning of the Michigan Court of Appeals.

Application to this Case

Florida’s dangerous instrumentality doctrine im-poses vicarious liability upon owners and lessors of aircraft, even where the aircraft is not within their

App. 32

immediate control or possession at the time of the loss. To the extent that the doctrine applies to inju-ries, damages, or deaths that occur on the surface of the earth, the doctrine conflicts with, and is therefore preempted by, section 44112. However, because the death of Martinez occurred while he was a passenger in a plane that crashed – not on the ground beneath the plane – the wrongful death action filed by Vree-land is not preempted by section 44112. Rather, Florida’s dangerous instrumentality doctrine applies, and the Second District erroneously affirmed the summary final judgment entered by the trial court in favor of Aerolease on the basis of federal preemption.5

The dissent contends that our holding today “defies reality.” Dissenting op. at 30. However, the dissent fails to provide any legal reasoning or prece-dent in support of this assertion other than the erroneous decision of the Second District below and completely disregards the fifty years of congressional history that surrounds this federal provision. Rather than presenting a basis for disagreement that is grounded in sound legal analysis and historical

5 Aerolease also challenges the decision of the Second District to reverse the trial court award of summary final judgment on the negligent maintenance and inspection claim. During the direct appeal, however, the parties agreed to utilize appendices instead of filing an original record with the district court. Therefore, this Court lacks a full record of the trial court proceedings. In the absence of a complete record upon which to evaluate the parties’ assertions, and the apparent presence of disputed issues of material fact as reflected in the briefs, we decline to address this issue.

App. 33

consideration, the dissent simply turns a blind eye to the well-documented creation and evolution of what is now section 44112 and the longstanding pre-sumption against preemption of traditional state law remedies. It is certainly easy to proclaim that a legal analysis is absurd or nonsensical merely by pretend-ing the extensive history in support of that analysis does not exist. If reality is defied in this case, the dissent is the culprit for willful blindness and a lack of cogent legal analysis.

CONCLUSION

Accordingly, we quash the decision of the Second District in Vreeland to the extent it holds that Vree-land’s vicarious liability claim against Aerolease, pursuant to the dangerous instrumentality doctrine of Florida, is preempted by 49 U.S.C. § 44112. Fur-ther, we approve our decision in Orefice. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, J., dissents with an opinion.

CANADY, C.J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETER-MINED.

App. 34

POLSTON, J., dissenting.

I agree with the Second District that federal law preempts the application of Florida’s dangerous instrumentality doctrine to Vreeland’s claim that Aerolease, as the owner of the aircraft, is vicariously liable for the pilot’s negligence. See Vreeland v. Ferrer, 28 So. 3d 906, 912 (Fla. 2d DCA 2010).

The relevant portion of the Federal Aviation Act, 49 U.S.C. § 44112, provides as follows:




Based upon the plain meaning of this language, “the federal statute [shields] the owner or lessor of a civil aircraft from liability for the negligence of others committed when the aircraft was not in the owner’s or lessor’s possession or control.” Vreeland, 28 So. 3d at 910. Therefore, like the Second District, I believe federal law preempts Florida’s dangerous instrumen-tality doctrine here.

App. 35

By narrowly construing the “on land or water” language of the statute, the majority holds that the federal statute only preempts Florida law when the loss of life occurs to someone on the ground beneath the aircraft. See majority op. at 18, 26-27. However, as the Second District noted, this reasoning does not “explain why an airplane crash does not cause an injury on the surface of the earth regardless of whether the injured person was in the airplane or standing on the ground.” Vreeland, 28 So. 3d at 911. The majority’s assertion that the federal statute does not apply because “Martinez was not ‘on land or water’ at the time of the crash – he was a passenger inside the aircraft”6 defies reality. Even though Mar-tinez was in the aircraft when it hit land, his death occurred “on land,” not in the aircraft prior to contact with land. The majority’s view is inconsistent with the plain meaning of the statute, specifically the plain meaning of “on land.”7

6 Majority op. at 18. 7 See Carcieri v. Salazar, 129 S. Ct. 1058, 1063-64 (2009) (“[W]e must first determine whether the statutory text is plain and unambiguous. If it is, we must apply the statute according to its terms.”) (citations omitted); Caminetti v. United States, 242 U.S. 470, 485-86 (1917) (explaining that “the meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms” and explaining that “[s]tatutory words are uniform-ly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly


App. 36

Therefore, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions

Second District – Case No. 2D08-248

(Polk County)

Joel D. Eaton of Podhurst Orseck, P.A., Miami, Flori-da, and the Law Firm of Wagner, Vaughan and McLaughlin, P.A., Tampa, Florida,

for Petitioner

Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy and Ford, P.A., Fort Lauderdale, Florida,

for Respondent

attributed to them”); see also Davis v. Michigan Dep’t of Treas-ury, 489 U.S. 803, 808 n.3 (1989) (“Legislative history is irrele-vant to the interpretation of an unambiguous statute.”).

App. 37

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,

IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JOHN K. VREELAND, Administrator ad Litem for the Estate of JOSE MARTINEZ, and as Personal Representative of the Estate of JOSE MARTINEZ, Deceased,

Appellant,

v.

DANNY FERRER d/b/a FERRER AVIATION; DANNY FERRER; AEROLEASE OF AMERICA, INC., a corporation; BIOMETRIC SCIENCE FOUNDATION, LLC; and LINDA PALAS, as Personal Representative of the Estate of DONALD PALAS, Deceased,

Appellees.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2D08-248

Opinion filed January 6, 2010.

Appeal from the Circuit Court for Polk County; Dennis P. Maloney, Judge.

App. 38

Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Bill Wagner of Wagner Vaughan & McLaughlin, P.A., Tampa, for Appellant.

Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Lauderdale, for Appellee Aerolease of America, Inc.

No appearance for Appellees Danny Ferrer d/b/a Ferrer Aviation; Danny Ferrer; Biometric Science Foundation, LLC; and Linda Palas, as Personal Representative of the Estate of Donald Palas, deceased.

NORTHCUTT, Judge.

Jose Martinez was a passenger aboard a private airplane that crashed shortly after takeoff. Martinez and the pilot were killed. The administrator ad litem for and personal representative of Martinez’s estate, John K. Vreeland, filed a wrongful death action against the owner of the plane, the company to which the owner had leased the plane, and the pilot’s estate. This appeal involves only the claims against the owner, Aerolease of America, Inc. The circuit court granted Aerolease a summary judgment on the three counts asserted against it, thereby disposing of the entire case as to that defendant. See Fla. R. App. P. 9.110(k).

Vreeland challenges the summary judgment on two of the counts. The first alleged that, as the air-plane’s owner, Aerolease was vicariously liable for the

App. 39

pilot’s negligent operation of the airplane, a danger-ous instrumentality under Florida law. The second count contended that Aerolease negligently main-tained and inspected the aircraft before leasing it and that this negligence was the cause of the accident. As discussed below, we affirm the summary judgment on the first count and reverse the summary judgment on the second count. Vreeland has not taken issue with the summary judgment on the third count, which asserted that Aerolease intentionally published false information about the condition of the aircraft in order to induce a lease. Accordingly, we affirm the summary judgment on that count without discussion.

Vicarious Liability

In Florida the owner of a “dangerous instrumen-tality” who has expressly or impliedly consented to its operation by another is vicariously liable for injuries or damages caused by its negligent operation. Orefice v. Albert, 237 So.2d 142, 143-44 (Fla. 1970). An air-plane is a dangerous instrumentality. Id. As men-tioned, Vreeland’s first count against Aerolease sought to impose liability under this theory.

Aerolease successfully moved for summary judgment on the ground that a provision of the Fed-eral Aviation Act, 49 U.S.C. § 44112, preempts Flori-da’s dangerous instrumentality law as it relates to owners or lessors of civil aircraft. The pertinent part of that statute reads as follows:

App. 40

(b) Liability. – A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water on-ly when a civil aircraft, aircraft engine, or propeller is in the actual possession or con-trol of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of –



Vreeland does not dispute that the airplane was not in Aerolease’s possession or control at the time of the pilot’s alleged negligence. But he maintains that the federal statute was not intended to preempt liability under state law theories such as Florida’s dangerous instrumentality doctrine. Rather, he argues, the statute’s purpose was to make clear that Congress had not intended the federal act to create a cause of action based on vicarious liability. We disa-gree.

As other courts have recognized, any discussion of this topic must involve an examination of the statute’s legislative history. The forerunner of the present statute was 49 U.S.C. § 1404, enacted in 1948.1 House Report No. 80-2091 was issued in

1 That statute, as amended in 1959, read:

No person having a security interest in, or security ti-tle to, any civil aircraft, aircraft engine, or propeller


App. 41

conjunction with the 1948 enactment. Contrary to Vreeland’s argument, the Report confirmed that the statute was indeed directed to liability under state law. Specifically, the Report documented Congress’s concern about a provision of the Uniform Aeronautics Act that had been adopted by a number of states.

Section 4 of the Uniform Aeronautics Act is in force in at least 10 States and Hawaii. That section reads, in part, as follows:

The owner of every aircraft which is operated over the lands or the waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was

under contract of conditional sale, equipment trust, chattel, or corporate mortgage, or other instrument of similar nature, and no reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft, aircraft engine, or propeller so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, aircraft engine, or propeller, or by the ascent, descent, or flight of such aircraft, aircraft engine, or propeller or by the drop-ping or falling of an object therefrom, unless such air-craft, aircraft engine, or propeller is in the actual possession or control of such person at the time of such injury, death, damage, or loss.

49 U.S.C. § 1404 (1959). The 1959 amendment added aircraft propellers and engines to the original 1948 law, which only addressed the aircraft itself. See 1959 U.S.C.C.A.N. 1762.

App. 42

negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to persons or proper-ty, both owner and lessee shall be liable, and they may be sued jointly or either or both of them may be sued separately.

1948 U.S.C.C.A.N. 1836 (emphases supplied, footnote omitted). The House Report went on to observe that this provision, as adopted in various states, imposed absolute liability on owners of aircraft even if they held title only as lessors. The report continued:

An owner in possession or control of aircraft, either personally or through an agent, should be liable for damages caused. A secu-rity owner not in possession or control of the aircraft, however, should not be liable for such damages. This bill would make it clear that this generally accepted rule applies and assures the security owner or lessee (sic), that he would not be liable when he is not in pos-session or control of the aircraft.

Id. (emphasis supplied.) We believe these statements show that Congress intended 49 U.S.C. section 1404 to shield an owner or lessor of a civil aircraft from vicarious liability under state law when the aircraft was not in its possession or control.

The current statute was part of a broad recodifi-cation of the Federal Aviation Act in 1994. Pub. L. No. 103-272. Subsection 1.(a) of that public law states

App. 43

that “ ‘[c]ertain general and permanent laws of the United States, related to transportation, are revised, codified and enacted by subsections (c)-(e) of this section without substantive change. . . .’ ” “49 U.S.C. s. 44112 replaced 49 U.S.C. s. 1404 by virtue of Section 1.(e) of P.L. 103-272. Also, Section 6.(a) of P.L. 103-272 provides that Sections (1) through (4), including Section 1.(e), ‘restate, without substantive change, laws enacted before July 1, 1993, that were replaced by these sections. These sections may not be con-strued as making a substantive change in the laws replaced.’ ” Mangini v. Cessna Aircraft Co., 2005 WL 3624483 at *2, 40 Conn. L. Rptr. 470 (Conn. Super. Ct. Dec. 7, 2005) (not reported in A.2d) (quoting Pub. L. No. 103-272) (emphases supplied). Congress thus made clear that the substantive effect of 49 U.S.C. § 44112 is the same as its predecessor’s.

Whether a federal statute preempts state law is a question of law. Federal preemption “may be either express or implied, and is compelled whether Con-gress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990)).

The federal statute at issue here does not ex-pressly preempt state laws imposing vicarious liabil-ity on the owners or lessors of civil aircraft, hence the dispute before us. However, preemption is implied when there is a conflict between a federal law and a state law. Talbott v. Am. Isuzu Motors, Inc., 934

App. 44

So. 2d 643, 645 (Fla. 2d DCA 2006). There is a conflict between federal and state law when the dictates of both sets of laws cannot be complied with or where dual compliance may be technically possible but the state law creates an obstacle to fulfilling the federal policy and goals. Id. As reflected both in the language of 49 U.S.C. § 44112 and in the House Report accom-panying the enactment of the statute’s predecessor, the policy and goal underlying the federal statute is to shield the owner or lessor of a civil aircraft from liability for the negligence of others committed when the aircraft was not in the owner’s or lessor’s posses-sion or control. To apply Florida’s dangerous instru-mentality law so as to impose vicarious liability on such an owner or lessor in such circumstances would, to say the least, create an obstacle to fulfilling that policy and goal.

We recognize that the case authorities regarding the preemptive effect of this provision are far from consistent in either their conclusions or their reason-ing. See Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir. 1994) (affirming unreported district court decision, 1990 WL 43351 (N.D. Ill. Mar. 30, 1990), and holding that liability under Illinois bailment law was preempted, but also discussing the fact that the state law would not have provided relief ); Rogers v. Ray Gardner Flying Serv., Inc., 435 F.2d 1389 (5th Cir. 1970) (noting that 49 U.S.C § 1404 “appears clearly and forthrightly to preempt any contrary state law which might subject holders of security interests to liability for injuries”); Esheva v. Siberia Airlines,

App. 45

499 F. Supp. 2d 493, 499 n.4 (S.D.N.Y. 2007) (stating that a lessor of an aircraft is absolutely immune under 49 U.S.C. § 44112(b) from a claim based on vicarious liability); In re Lawrence W. Inlow Accident Litig., 2001 WL 331625 (S.D. Ind. Feb. 7, 2001) (unpublished decision) (finding preemption of state law on liability of lessors based on the language of 49 U.S.C. § 44112 itself, and on the congressional intent to preempt the Uniform Aeronautics Act as stated in House Report accompanying the enactment of 49 U.S.C. § 1404); Mangini v. Cessna Aircraft Co., 2005 WL 3624483, 40 Conn. L. Rptr. 470 (Conn. Super. Ct. Dec. 7, 2005) (not reported in A.2d) (holding that 49 U.S.C. § 44112 applies to owners of aircraft and preempts state law that would hold owners vicarious-ly liable in aircraft accidents); but see Coleman v. Windham Aviation, Inc., 2005 WL 1793907 (R.I. Super. Ct. Jul. 18, 2005) (unpublished decision) (holding that 49 U.S.C. § 44112 did not preempt state law imposing vicarious liability on an owner of an aircraft); Retzler v. Pratt & Whitney Co., 723 N.E.2d 345 (Ill. App. Ct. 1999) (finding that the language of 49 U.S.C. § 1404 did not impliedly preempt state bailment law); Sexton v. Ryder Truck Rental, Inc., 320 N.W.2d 843 (Mich. 1982); Storie v. Southfield Leasing, Inc., 282 N.W. 2d 417 (Mich. App. Ct. 1979), aff ’d Sexton, 320 N.W. 2d 843 (both determining that 49 U.S.C. § 1404 did not preempt the Michigan aircraft ownership liability statute for damages that occurred inside the aircraft).

App. 46

We consider the cases finding preemption to be the better reasoned ones. We are not persuaded by the arguments against the preemptive force of 49 U.S.C. § 44112, nor do we find the cases so holding to be well reasoned. For example, in the Michigan cases cited above, the courts parsed the language in 49 U.S.C. § 1404, which shielded a lessor from liability for injury “on the surface of the earth,” to hold that the statute did not preempt state law liability for injuries that occurred inside an aircraft. Storie, 282 N.W. 2d at 421; see also Sexton, 320 N.W.2d at 847 n.2 (adopting Storie). But those cases do not explain why an airplane crash does not cause an injury on the surface of the earth regardless of whether the injured person was in the airplane or standing on the ground.

The Rhode Island court in Coleman noted that the legislative history of 49 U.S.C. § 1404 indicates that the enactment was designed to facilitate the financing of aircraft, and the court posited that the statute was designed to protect owners and lessors only for security purposes. 2005 WL 1793907 at *5-*6 (quoting House Report 80-2091 for the proposition that “[t]he limitation with respect to leases of 30 days or more, in case of lessors of aircraft, was included for the purpose of confining the section to leases executed as a part of some arrangement for financing purchas-es of aircraft.”).

But the statute actually at issue in Coleman was 49 U.S.C. § 44112, which, as shown by the previously-quoted portions of both statutes, is worded differently than 49 U.S.C. § 1404. The current statute plainly

App. 47

refers to “a lessor, owner, or secured party.” The Coleman court’s reason for ignoring that language was tortuous. Focusing on Congress’s declaration that the 1994 recodification of the federal aviation law did not substantively change chapter 49, and finding no reference to owners in the legislative history of the predecessor statute, the Coleman court concluded that 49 U.S.C. § 44112 does not apply to owners of aircraft notwithstanding its express language.

The reasoning behind the Coleman court’s inter-pretation of 49 U.S.C. § 44112 was faulty in two respects. First, as the Connecticut court pointed out in Mangini, section 49 U.S.C. § 1404 did in fact refer to owners: “no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason . . . of his interest as lessor or owner of the aircraft. . . .” 2005 WL 3624483 at *2. Moreover, the Mangini court perceived that, in light of Congress’s admonition that the recodification of chapter 49 did not effect a substantive change in the law, the prede-cessor statute “was always designed to include the owners that 49 U.S.C. s. 44112 so clearly and defi-nitely describes.” Id. at *4. We agree.

The Retzler court, in finding that 49 U.S.C. § 44112 did not preempt lessor liability, mistakenly focused on the general savings clause in the Aviation Act, 49 U.S.C. § 40120(c), which provides that “a remedy under this part is in addition to any other remedies provided by law.” (Emphasis supplied.) Retzler relied on Abdullah v. American Airlines, 181 F.3d 363, 375 (3d Cir. 1999), for the proposition that

App. 48

state remedies are foreclosed “where there is an irreconcilable conflict between the federal and state standards or where the imposition of a state standard in a damages action would frustrate the objectives of the federal law.” Retzler, 723 N.E. 2d at 352. Thus it ventured that the enactment of the savings clause demonstrated Congress’s belief that state remedies were compatible with Federal aviation law and that federal law, in general, did not preempt state reme-dies. Id. We do not disagree with the general proposi-tion that Congress could not have intended to broadly abolish state damage remedies for injury or death connected with aviation accidents. But that proposi-tion is simply irrelevant to the purpose of 49 U.S.C. § 44112, which is to shield specific parties from liabil-ity in specific circumstances, i.e., where a lessor, owner, or secured party is not in actual possession or control of the aircraft when another’s negligence causes injury. That purpose is in “irreconcilable conflict” with the Florida dangerous instrumentality doctrine, and as we previously discussed, results in an implied preemption of Florida state law in this circumstance.

For the foregoing reasons, we conclude that 49 U.S.C. § 44112 preempts Florida’s dangerous instru-mentality law insofar as that law would hold the owner or lessor of a civil aircraft liable for another’s negligence committed when the owner or lessor was not in actual possession or control of the aircraft.

In reaching this conclusion, we distinguish Orefice, in which the Florida Supreme Court held

App. 49

that an airplane was a dangerous instrumentality and that the airplane’s co-owner could be held vicari-ously liable for the craft’s negligent operation. Alt-hough 49 U.S.C. § 1404 was in effect at that time, the Orefice court did not mention or discuss it. We can only surmise that the possible preemptive effect of the federal statute on the dangerous instrumentality law was not raised in either the supreme court or in the underlying case before the district court of appeal. See Orefice v. Albert, 226 So. 2d 15 (Fla. 3d DCA 1969). As such, the supreme court did not address the issue presented here.

Moreover, the Orefice court’s ruling that the dangerous instrumentality law imposed vicarious liability on owners of aircraft was based in part on its observation that Chapter 330, Florida Statutes (1970), reflected “a specific policy by the State of Florida to license and otherwise see after aircraft safety.” Orefice, 237 So. 2d at 145. The Florida stat-utes addressing aircraft safety have since been re-pealed. Compare ch. 330, Fla. Stat. (1970), with ch. 330, Fla. Stat. (2004).

The circuit court correctly determined that, under 49 U.S.C. § 44112, Aerolease cannot be held vicariously liable for the negligence of others commit-ted when the aircraft was not in Aerolease’s posses-sion or control. Accordingly, we affirm the partial summary judgment entered on that count of Vree-land’s complaint.

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Negligent Maintenance and Inspection

Vreeland’s complaint also alleged that Aerolease negligently maintained and inspected the aircraft before it leased the plane. The partial summary judgment entered in Aerolease’s favor on all counts, including this one, referred only to the preemptive force of 49 U.S.C. § 44112.

As discussed above, however, the purpose of the federal statute is to shield an owner or lessor from liability for the negligence of others committed when the aircraft is not in the owner’s or lessor’s possession or control. We have found no basis for attributing to the statute an intention to shield a party from having to answer for its own active negligence when the party has possession or control of the aircraft. As such, the application of state negligence law in such circumstances would in no way hinder the fulfillment of the federal statute’s purpose. For this reason, we conclude that 49 U.S.C. § 44112 does not preempt Florida negligence law insofar as Vreeland seeks to recover for Aerolease’s active negligence in maintain-ing and inspecting the airplane while it was in Aerolease’s possession or control. Therefore, we reverse the summary judgment on that count and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

VILLANTI, J., and FULMER, CAROLYN K., Senior Judge, Concur.

App. 51

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

IN AND FOR POLK COUNTY, FLORIDA. JOHN K. VREELAND, Administrator Ad Litem For the Estate of JOSE MARTINEZ and the Personal Representtive of the Estate of JOSE MARTINEZ, deceased,

Plaintiff,

vs.

DANNY FERRER d/b/a FERRER AVIATION; DANNY FERRER; AEROLEASE OF AMERICA, INC., a corporation; BIOMETRIC SCIENCE FOUNDATION, LLC, and LINDA PALAS, as Personal Representative of the Estate of DONALD PALAS, deceased;

Defendants.

CASE NO. 53-2005-CA-003535

ORDER DENYING PLAINTIFF’S

MOTION FOR RECONSIDERATION OF ORDER ON SUMMARY JUDGMENT

On September 25, 2007, this court entered an order granting summary judgment in favor of defen-dant, Aerolease of America, Inc. I concluded that 49 U.S.C.A. Sec. 44112 preempts Florida’s dangerous

App. 52

instrumentality doctrine as it pertains to owners/ lessors not in actual possession or control of air-planes. The thrust of the motion for reconsideration is that in so ruling this court either overlooked or overruled Orefice v. Albert, 237 So. 2d 142 (Fla. 1970). That case stands for the proposition that in Florida airplanes are dangerous instrumentalities. It had nothing to do with federal preemption.

Admittedly, the earlier order was unclear regard-ing defendants’ Air American, Inc. and Aerobanc of America, Inc., motion for summary judgment. Be-cause they are not owners/lessors of the airplane the federal law does not apply. Therefore, it is adjudged:

1. Plaintiff ’s motion for reconsideration is de-nied.

2. Defendant, Aerolease of America, Inc.’s mo-tion for summary judgment is granted. Plaintiff ’s third amended complaint is dis-missed with prejudice as to all claims against Aerolease of America, Inc. Plaintiff shall take nothing by this action and defen-dant, Aerolease of America, Inc. shall go hence without day.

3. Defendants’, Air America, Inc. and Aerobanc of America, Inc., motion for summary judg-ment is denied.

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DONE AND ORDERED this 17th day of Decem-ber, 2007 in Bartow, Polk County, Florida.

/s/ Dennis P. Maloney DENNIS P. MALONEY

Circuit Judge Copies furnished to:

Edward C. Curtis, Esq. Robert C. Barouth, Esq. John M. McLaughlin, Esq. Robert L. Trohn, Esq. Bill Wagner, Esq. Gregory P. Sreenan, Esq. Alexander Muszynski, III, Esq. Arthur C. Fulmer, Esq. Christopher S. Morin, Esq.

App. 54

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR POLK COUNTY, FLORIDA

JOHN K. VREELAND, Administrator Ad Litem for the Estate of JOSE MARTINEZ, and Personal Representative of the Estate of JOSE MARTINEZ, Deceased, Plaintiff, v. DANNY FERRER d/b/a/ FERRER AVIATION, DANNY FERRER, AEROLEASE OF AMERICA, INC., a Corporation, BIOMETRIC SCIENCE FOUNDATION, LLC, and LINDA PALAS, as Personal Representative of the Estate of DONALD PALAS, Deceased, Defendants, /

Case No.: 2005-CA-003535

Section: 07

ORDER GRANTING DEFENDANT’S,

AEROLEASE OF AMERICA, INC., MOTION FOR FINAL SUMMARY JUDGMENT

and GRANTING DEFENDANTS’ AEROLEASE OF

AMERICA, INC., AIR AMERICA, INC., and AEROBANC OF AMERICA, INC., AMENDED

MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court on Defendant’s, AEROLEASE OF AMERICA, INC.’S (“AEROLEASE”),

App. 55

Motion for Final Summary Judgment, filed Septem-ber 8, 2006, and Defendants,’ AEROLEASE, AIR AMERICA, INC. (“AIR AMERICA”), and AEROBANC OF AMERICA, INC. (“AEROBANC”), Amended Motion for Summary Judgment, filed August 10, 2007. The Court, having reviewed the Motions, plead-ings, applicable case law, and having heard and considered the arguments of the parties at a hearing on September 11, 2007, and otherwise being fully informed in the matter, finds as follows:

This matter involves, in part, claims of negli-gence, pursuant to the Florida Wrongful Death Act, Sections 768.16-.26, Fla. Stat. (LEXIS through 2007 sess.), as against AEROLEASE, AIR AMERICA, and AEROBANC regarding a January 14, 2005 lethal plane crash due to alleged negligent inspection and maintenance. As alleged by Plaintiff, DANNY FERRER had leased the aircraft from AEROLEASE, AIR AMERICA, and AEROBANC, as an alleged joint venture, and, subsequently, DANNY FERRER ar-ranged to have the airplane inspected, repaired, and then flown from California to Florida by SKYBLUE AIR, INC. (allegedly acting as Defendants’ agent). The airplane crashed on a subsequent flight in Polk County, Florida.

The AIRCRAFT LEASE states “THIS AIRCRAFT LEASE is between AeroLease of America, Inc. (the “Lessor”), and: . . . (the “Lessee”) . . . WHEREAS, Lessor is the owner of that Aircraft. . . .” (Def.’s, AEROLEASE OF AMERICA, INC., Mot. for Final Summ. J., Exhibit C, AIRCRAFT LEASE, at 1.)

App. 56

Under the Florida Dangerous Instrumentality Doctrine the owner or lessor of an aircraft is vicari-ously liable for the pilot’s negligence. This is true under federal law only when the owner or lessor is in actual possession or control of the aircraft. If the owner or lessor is not in actual possession or control he or she is not liable for the negligence of the pilot. The question here is whether Florida or federal law applies.

Defendant asserts that 49 U.S.C.A. § 44112 (LEXIS through 2007 sess.) (formally codified as 49 U.S.C.A. § 1404) preempts contrary state law where a claimant seeks to impose liability for personal injury upon a lessor or owner of aircraft. 49 U.S.C.A. § 44112 states:

(a) Definitions. In this section –

(1) “lessor” means a person leasing for at least 30 days a civil aircraft, aircraft en-gine, or propeller.

(2) “owner” means a person that owns a civil aircraft, aircraft engine, or propeller . . .

(b) Liability. A lessor, owner, or securing party is liable for personal injury, death, . . . only when a civil aircraft, aircraft engine, or propeller is in the actual pos-session or control of the lessor, owner . . . and the personal injury, death, . . . occurs because of –

App. 57

(1) The aircraft engine, or propeller; or

(2) The flight of, or an object falling from, the aircraft, engine, or propel-ler.

The court finds that, under the plain reading of 49 U.S.C.A. § 44112, AEROLEASE, described as the lessor and owner of the aircraft in the AIRCRAFT LEASE, was a lessor/owner who was not in the actual possession or control of the airplane. Therefore, 49 U.S.C.A. § 44112 is applicable, preempting Florida law as to AEROLEASE only. Since the lease does not name AEROBANC or AIR AMERICA as owners or lessors of the aircraft, federal preemption does not necessarily apply to the claims against them.

It is, therefore, ORDERED and ADJUDGED that:

1. Defendant’s, AEROLEASE OF AMERICA, INC.’S, Motion for Final Summary Judgment is GRANTED.

2. Defendants,’ AEROLEASE OF AMERICA, INC., AIR AMERICA, INC., and AERO-BANC OF AMERICA, INC., Amended Mo-tion for Summary Judgment is GRANTED as to AEROLEASE OF AMERICA, INC. only. AEROLEASE OF AMERICA, INC. is listed as both owner and lessor in the AIRCRAFT LEASE. AEROLEASE OF AMERICA, INC. was not in the actual possession or control of the aircraft on its January 14, 2005 crash. 49 U.S.C.A. § 44112 is applicable.

App. 58

DONE AND ORDERED in Bartow, Polk Coun-ty, Florida this 25th day of September , 2007.

/s/ Dennis P. Maloney DENNIS P. MALONEY,

Circuit Judge Copies To: Christopher Morin, Esq.

101 E. Kennedy Blvd., Suite 1810, Tampa, FL 33602

Edward Curtis, Esq. PO Box 14245 Fort Lauderdale, FL 33011

Bill Wagner, Esq. & John McLaughlin, Esq. 601 Bayshore Blvd., Suite 910, Tampa, FL 33606

Alexander Muszynski, III, Esq. 37 N. Orange Ave, Suite 1100, Orlando, FL 32801

Gregory Sreenan, Esq. 44 W. Flagler Street, Suite 1720, Miami, FL 33130

Robert Trohn, Esq. PO Box 3, Lakeland, FL 33802

App. 59

Robert Bauroth, Esq. 515 E. Las Olas Blvd., Sun Trust Center, Suite 1400, PO Box 14460, Ft. Lauderdale, FL 33302

Arthur Fulmer, Esq. 1960 E. Edgewood Drive, Lakeland, FL 33803

App. 60

Supreme Court of Florida

TUESDAY, SEPTEMBER 13, 2011

CASE NO.: SC10-694 Lower Tribunal No(s).: 2D08-248, 2005-CA-003535

JOHN K. VREELAND, ETC.

DANNY FERRER, ETC., ET AL.

Petitioner(s) Respondent(s) Respondent’s Motion for Rehearing is hereby denied.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, J., dissents CANADY, C.J., recused.

A True Copy Test:

/s/ Thomas D. Hall [SEAL] Thomas D. Hall

Clerk, Supreme Court

jn Served:

ROBERT L. TROHN JOEL D. EATON ARTHUR CHARLES FULMER GREGORY PATRICK SREENAN SHELLEY H. LEINICKE HON. JAMES BIRKHOLD, CLERK HON. RICHARD M. WEISS, CLERK HON. DENNIS P. MALONEY, JUDGE

App. 61

P.L. 80-656, CIVIL AIRCRAFT – LIABILITY OF OWNER

Senate Report No. 80-1363, May 20, 1948 (To accompany S. 2455)

House Report No. 80-2091, June 1, 1948 (To accompany S. 2455)

The House Report repeats in substance the Senate Report

House Report No. 80-2091 June 1, 1948

THE Committee on Interstate and Foreign Com-merce, to whom was referred the bill (S. 2455) to amend the Civil Aeronautics Act of 1938, as amended, by limiting the liability of certain persons not in possession of aircraft, having considered the same, re-port favorably thereon without amendment and rec-ommend that the bill do pass.

This bill proposes to insert after section 503 of the Civil Aeronautics Act of 1938 a new section 504, as follows:

Sec. 504. No person having a security interest in, or security title to, any civil aircraft under a contract of conditional sale, equipment trust, chattel or corpo-rate mortgage, or other instrument of similar nature, and no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, or by the ascent,

App. 62

descent, or flight of such aircraft or by the dropping or falling of an object therefrom, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage, or loss.

Provisions of present Federal and State law might be construed to impose upon persons who are owners of aircraft for security purposes only, or who are lessors of aircraft, liability for damages caused by the operation of such aircraft even though they have no control over the operation of the aircraft. This bill would remove this doubt by providing clearly that such persons, have no liability under such circum-stances.

The relief thus provided from potential unjust and discriminatory liability is necessary to encourage such persons to participate in the financing of aircraft purchases.

The provisions of present law above referred to are section 1(26) of the Civil Aeronautics Act of 1938 and section 5 of the Uniform Aeronautics Act.


(26) ‘operation of aircraft’ or ‘operate aircraft’ means the use of aircraft for the purpose of air navi-gation and includes the navigation of aircraft. Any person who causes or authorizes the operation of air-craft, whether with or without the right of legal con-trol (in the capacity of owner, lessee, or otherwise) of

App. 63

the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of this Act.

Section 4 of the Uniform Aeronautics Act is in force in at least 10 States1 and Hawaii. That section reads, in part, as follows:

The owner of every aircraft which is operated over the lands or the waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to persons or prop-erty, both owner and lessee shall be liable, and they may be sued jointly or either or both of them may be sued separately.

This provision thus imposes absolute liability on owners of aircraft for damage caused on the surface of the earth. It is susceptible of a construction which would impose liability upon any person registered as owner, even though he holds title only as security under a mortgage or similar security instrument or as lessor under an equipment trust. If such interpre-tation were adopted, the security title holder could

1 Delaware, Indiana, North Carolina, North Dakota, New Jersey, South Carolina, South Dakota, Tennessee, Vermont, and Wisconsin.

App. 64

become liable for extensive damages on the surface caused by the operation of the aircraft. An owner in possession or control of aircraft, either personally or through an agent, should be liable for damages caused. A security owner not in possession or control of the aircraft, however, should not be liable for such damages. This bill would make it clear that this gen-erally accepted rule applies and assures the security owner or lessee, that he would not be liable when he is not in possession or control of the aircraft.

The limitation with respect to leases of 30 days or more, in case of lessors of aircraft, was included for the purpose of confining the section to leases executed as a part of some arrangement for financing pur-chases of aircraft. Any lease in connection with any such arrangement would almost certainly be for a period in excess of 30 days.

In deciding to approve legislation for the above-stated purposes, the committee has given weight to recommendation No. 34 of the report of the Congres-sional Aviation Policy Board and to the recommenda-tions of the Civil Aeronautics Board. This proposed legislation is endorsed by the Aircraft Industries As-sociation, representing the manufacturers of aircraft, the Air Transport Association, representing the certif-icated air carries [sic] of the United States, the lend-ing institutions, and the Government departments concerned. It is the conviction of the committee that the bill should be passed to remove one of the obsta-cles to the financing of purchases of new aircraft.

App. 65

PUBLIC LAWS – CHS. 482, 488 – JUNE 16, 1948

[CHAPTER 482]

AN ACT

To amend the Civil Aeronautics Act of 1938, as amended, by limiting the liability of

certain persons not in possession of aircraft.

Be it enacted by the Senate and House of Repre-sentatives of the United States of America in Congress assembled, That the Civil Aeronautics Act of 1938, as amended (52 Stat. 973; U.S.C., title 49, sec. 401 and the following), is further amended by inserting, im-mediately following section 503 thereof, the following new section:

“SEC. 504. No person having security interest in, or security title to, any civil aircraft under a contract of conditional sale, equipment trust, chattel or corpo-rate mortgage, or other instrument of similar nature, and no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft so leased, for any injury to or death of persons, or dam-age to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, or by the ascent, descent, or flight of such aircraft or by the dropping or falling of an object therefrom, unless such aircraft is in the actual possession or control of

App. 66

such person at the time of such injury, death, damage or loss.”

Approved June 16, 1948.

PUBLIC LAW 85-726 – AUG. 28, 1958

LIMITATION OF SECURITY OWNERS LIABILITY

SEC. 504. No person having a security interest in, or security title to, any civil aircraft under a contract of conditional sale, equipment, trust, chattel or corpo-rate mortgage, or other instrument of similar nature, and no lessor of any such aircraft under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft so leased, for any injury to or death of persons, or damage to or loss of prop-erty, on the surface of the earth (whether on land or water) caused by such aircraft, or by the ascent, descent, or flight of such aircraft or by the dropping or falling of an object therefrom, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage, or loss.

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H.R. REP. 86-445, H.R. Rep. No. 445, 86TH Cong., 1ST Sess. 1959, 1959 U.S.C.C.A.N. 1762, 1959 WL 3790 (Leg.Hist.)

P.L. 86-81, FEDERAL AVIATION ACT OF 1958 – FINANCING

SENATE REPORT NO. 86-221, APR. 24, 1959 (TO ACCOMPANY S. 1368)

HOUSE REPORT NO. 86-445, JUNE 8, 1959 (TO ACCOMPANY S. 1368)

THE HOUSE REPORT IS SET OUT.

HOUSE REPORT NO. 86-445 JUNE 8, 1959

THE COMMITTEE ON INTERSTATE AND FOR-EIGN COMMERCE, TO WHOM WAS REFERRED THE BILL (S. 1368) TO AMEND SECTIONS 503 AND 504 OF THE FEDERAL AVIATION ACT OF 1958 TO FACILITATE FINANCING OF NEW JET AND TURBOPROP AIRCRAFT, HAVING CONSID-ERED THE SAME, REPORT FAVORABLY THERE-ON WITH AMENDMENTS AND RECOMMEND THAT THE BILL AS AMENDED DO PASS.

COMMITTEE SUBSTITUTE

THE AMENDMENT IN THE NATURE OF A SUBSTITUTE PROPOSED BY THE COMMITTEE IS TECHNICAL IN NATURE. NO SUBSTANTIVE CHANGE IS MADE IN THE LEGISLATION AS PASSED BY THE SENATE.

THE SUBSTITUTE IS INTENDED TO MAKE THE PROPOSED AMENDMENTS CONFORM TO

App. 68

THE STYLE AND FORM OF THE FEDERAL AVIA-TION ACT OF 1958.

THE AMENDMENT TO THE TITLE IS MERELY A CLARIFYING AMENDMENT SO AS TO EXPRESS MORE CLEARLY THE SPECIFIC PURPOSE OF THE BILL.

PURPOSE OF LEGISLATION.

THE PURPOSE OF THIS LEGISLATION IS TO FACILITATE THE LEASING OR SEPARATE FI-NANCING OF PROPELLERS AND AIRCRAFT EN-GINES NEEDED TO MODERNIZE THE NATION’S CIVIL AIRCRAFT FLEET.

IN THE CIVIL AERONAUTICS ACT OF 1938 PROVISION WAS MADE FOR RECORDING MORT-GAGES ON COMPLETE AIRCRAFT. THIS PROVI-SION, WHICH COVERED AIRFRAMES, ENGINES, AND PROPELLERS AS COMPLETE UNITS, AT THE TIME WAS CONSIDERED ADEQUATE PRO-TECTION FOR HOLDERS OF SECURITY IN- TERESTS. BUT, AS THE AIR TRANSPORTATION INDUSTRY DEVELOPED AND EXPANDED, IN- DEPENDENT FINANCING OF IDENTIFIABLE ENGINES AS DISTINGUISHED FROM IDENTIFI-ABLE AIRPLANES, BECAME NECESSARY. AC-CORDINGLY, IN 1948 THE CIVIL AERONAUTICS ACT OF 1938 WAS AMENDED TO PROVIDE FOR RECORDING MORTGAGES AGAINST INDIVID-UAL ENGINES AND STORES OF SPARE PARTS.

App. 69

THE MORTGAGE RECORDATION PROVI-SIONS OF THE CIVIL AERONAUTICS ACT OF 1938 WERE CARRIED OVER INTO THE FEDERAL AVIATION ACT OF 1958 FOR THE PROTECTION OF SECURITY HOLDERS.

NEED FOR THIS LEGISLATION

THIS LEGISLATION WOULD AMEND THE FEDERAL AVIATION ACT OF 1958 SO AS TO PER-MIT THE RECORDING OF SECURITY INTERESTS IN SPECIFIC AIRCRAFT PROPELLERS, AS WELL AS AIRCRAFT ENGINES, PROPELLERS FOR MOD-ERN TRANSPORT-TYPE AIRCRAFT ARE COM-PLEX AND EXPENSIVE, SOMETIMES COSTING AS MUCH AS $25,000 EACH, AND USUALLY ARE READILY INTERCHANGEABLE FROM ONE EN-GINE TO ANOTHER.

PRESENT LAW PERMITS THE RECORDING OF SECURITY INTERESTS AS SPECIFIED AIR-CRAFT ENGINES AND PROPELLERS WHEN IN A DESIGNATED LOCATION UNDER A SO-CALLED BASKET MORTGAGE, BUT NO PROVISION IS MADE TO RECORD A SECURITY INTEREST IN A PROPELLER EXCEPT AS PART OF A COMPLETE AIRCRAFT OR UNDER A BASKET MORTGAGE. BECAUSE OF THE INTERCHANGEABILITY OF MODERN-TYPE PROPELLERS, THIS IS NOT SAT-ISFACTORY TO PROSPECTIVE SUPPLIERS OF EQUIPMENT AND HINDERS AIR CARRIERS IN EFFORTS TO MODERNIZE THEIR FLEETS. IT IS

App. 70

LOGICAL THAT THE PROTECTION AFFORDED BY EXISTING LAW TO SECURITY OWNERS OF AIRCRAFT SHOULD BE EXTENDED TO INCLUDE THOSE HAVING A SEPARATE SECURITY INTER-EST IN PROPELLERS.

IT IS ESTIMATED THAT THE TRANSITION FROM PISTON TO JET-POWERED AIRCRAFT NOW BEING MADE BY THE NATIONAL CIVIL AIR TRANSPORTATION INDUSTRY WILL COST AP-PROXIMATELY $4 BILLION BY 1962, TO COM-PLETE THIS SPECTACULAR EXPANSION, ABOUT $1.4 BILLION IN NEW CAPITAL WILL BE NEEDED. OF THIS A SUBSTANTIAL AMOUNT HAS NOT BEEN ARRANGED FOR. RAISING THIS NEW CAP-ITAL PRESENTS SERIOUS DIFFICULTIES, PAR-TICULARLY TO THE SMALLER AIRLINES, MANY OF WHICH MAY HAVE TO RESORT TO LEASING, CONDITIONAL PURCHASES, EQUIPMENT MORT-GAGING, AND LIKE ARRANGEMENTS, NOT ONLY OF COMPLETE AIRCRAFT BUT OF AIRCRAFT ENGINES AND PROPELLERS.

LIABILITY PROVISIONS

THE 1948 AMENDMENTS TO THE CIVIL AERONAUTICS ACT OF 1938 INCLUDED A PRO-VISION TO EXEMPT PERSONS WHOSE SOLE INTEREST THEREIN IS A SECURITY INTEREST FROM LIABILITY ARISING OUT OF THE OPERA-TIONS OF CIVIL AIRCRAFT.

App. 71

S. 1368 WOULD EXTEND THIS EXEMPTION BY AMENDING SECTION 504 OF THE FEDERAL AVIATION ACT OF 1958 TO GIVE HOLDERS OF SECURITY INTERESTS IN INSTALLED AIR-CRAFT ENGINES AND PROPELLERS THE SAME PROTECTION AGAINST LIABILITY ARISING OUT OF THE OPERATION OS SUCH EQUIPMENT AS IS NOW PROVIDED BY THAT SECTION TO HOLDERS OF SECURITY INTERESTS IN COM-PLETE AIRCRAFT.

AS PRESENTLY WRITTEN, THE EFFECT OF SECTION 504 IS TO RELIEVE ANY PERSON HAV-ING A SECURITY INTEREST IN AN AIRCRAFT UNDER A CONTRACT OF CONDITIONAL SALE, EQUIPMENT TRUST, MORTGAGE, OR SIMILAR INSTRUMENT, OR ANY PERSON WHO IS THE LESSOR OF AN AIRCRAFT UNDER A BONA FIDE LEASE OF 30 DAYS OR MORE, FROM ANY LIA-BILITY HE MIGHT HAVE BY REASON OF SUCH INTEREST FOR INJURY OR DAMAGE ON THE GROUND CAUSED BY THE OPERATION OF THE AIRCRAFT, UNLESS SUCH AIRCRAFT IS IN HIS ACTUAL POSSESSION OR CONTROL, UNLESS SECTION 504 IS AMENDED TO EXTEND TO PER-SONS HOLDING SECURITY INTERESTS IN AIR-CRAFT ENGINES AND PROPELLERS THE SAME LIMITATION OF LIABILITY NOW EXTENDED TO THOSE HOLDING SIMILAR INTERESTS IN AIR-CRAFT, THE FORMER CANNOT BE ASSURED OF EXEMPTION FROM LIABILITY FOR DAMAGE ON THE SURFACE OF THE EARTH CAUSED BY THE

App. 72

OPERATION OF THE AIRCRAFT IN WHICH THE AIRCRAFT ENGINE OR PROPELLER IS IN-STALLED.

THE COMMITTEE WAS INFORMED THAT SINCE THOSE INTERESTED IN LEASING OR SEPARATELY FINANCING AIRCRAFT ENGINES AND PROPELLERS INTERPRET THE SO-CALLED ABSOLUTE LIABILITY LAWS ENACTED BY VAR-IOUS STATES AS APPLYING TO THEM, THEY ARE UNWILLING TO ENTER INTO SUCH AR-RANGEMENTS UNLESS THE LAW IS AMENDED TO PROVIDE THEM. THE SAME PROTECTION NOW AFFORDED HOLDERS OF SECURITY IN-TEREST IN AIRCRAFT.

IT IS EMPHASIZED THAT THIS BILL IS NOT INTENDED TO EXEMPT ANYONE FROM ANY LIABILITY ASSOCIATED WITH THE OWNERSHIP OR CONTROL OF THE SPECIFIED ENGINES AND PROPELLERS, EXCEPT IN A CASE WHERE A PERSON, FIRM, OR CORPORATION IS SOUGHT TO BE HELD LIABLE SOLELY BECAUSE SAID PERSON, FIRM, OR CORPORATION IS ASSERT-ING INTEREST IN OR TITLE TO THE SAID EN-GINES AND PROPELLERS ONLY FOR THE PURPOSE OF SECURING PAYMENT OF INDEBT-EDNESS TO SAID PERSON, FIRM, OR CORPORA-TION. IT IS CONTEMPLATED. THAT A PERSON, FIRM, OR CORPORATION MAY DELIVER OVER SAID ENGINES AND PROPELLERS UNDER A CONDITIONAL SALE CONTRACT, AND EQUIP-MENT TRUST, CHATTEL OR OTHER TYPE OF

App. 73

MORTGAGE, OR OTHER SECURITY INSTRU-MENT OF SIMILAR NATURE, AND MAY, IN ONE OR MORE TYPES OF SUCH AGREEMENTS, RE-TAIN TITLE TO THE SAID ENGINES OR PRO-PELLERS FOR THE PURPOSE OF SECURING PAYMENT OF THE VALUE THEREOF TO THE SELLER, THIS BILL IS LIMITED SOLELY TO THE EXEMPTION OF SAID SECURITY HOLDER FROM LIABILITY SOLELY BECAUSE OF THE RELA-TIONSHIP AS SECURITY HOLDER.

ADDITIONAL COST TO

FEDERAL AVIATION AGENCY

ENACTMENT OF THIS LEGISLATION WOULD MEAN A SLIGHT INCREASE IN THE WORK- LOAD OF THE FEDERAL AVIATION AGENCY, AS POINTED OUT IN A LETTER FROM THAT AGENCY INCLUDED HEREAFTER IN THIS RE-SPECT.

DURING FISCAL YEAR 1957, THE CIVIL AERONAUTICS ADMINISTRATION (PREDECES-SOR OF THE FEDERAL AVIATION AGENCY) PROCESSED 2,675 CONVEYANCES AFFECTING SPECIFICALLY IDENTIFIED AIRCRAFT ENGINES OF 750 OR MORE RATED TAKEOFF POWER, AND 2,159 IN FISCAL YEAR 1958. A FEE IS CHARGED FOR THIS SERVICE. THE FAA ESTIMATES THAT THE ENACTMENT OF THE PROPOSED AMEND-MENT AFFECTING PROPELLERS WILL MEAN

App. 74

AN INCREASE IN EXPENDITURES OF BETWEEN $13,000 AND $15,000 A YEAR.

THE COMMITTEE RECOMMENDS THAT THE FEDERAL AVIATION AGENCY ESTABLISH A SCHEDULE OF FEES ADEQUATE TO MEET THE ADDITIONAL COSTS RESULTING FROM THE EN-ACTMENT OF THIS LEGISLATION AND TO MAKE THE ENTIRE RECORDATION SERVICE SELF-SUPPORTING. NO ADDITIONAL LEGISLATION IS NECESSARY TO ACCOMPLISH THIS.

SECTION-BY-SECTION SUMMARY

THE FOLLOWING IS A SECTION-BY-SECTION SUMMARY OF THE SUBSTITUTE AMENDMENT REPORTED BY THE COMMITTEE. THE PROVI-SIONS OF EXISTING LAW REFERRED TO ARE CONTAINED IN THE FEDERAL AVIATION ACT OF 1958.

THE FIRST SECTION OF THE SUBSTITUTE AMENDMENT AMENDS SECTION 503(A)(2) OF EXISTING LAW TO PROVIDE FOR THE CENTRAL RECORDING OF SECURITY INTERESTS IN SPE-CIFICALLY IDENTIFIED AIRCRAFT PROPEL-LERS. AS PRESENTLY WRITTEN, THIS SECTION APPLIES ONLY TO COMPLETE AIRCRAFT AND AIRCRAFT ENGINES.

IT SHOULD BE NOTED THAT UNDER SECTION 503(A)(3) OF THE EXISTING LAW, PROPELLERS AND OTHER SEPARATE ITEMS OF EQUIPMENT

App. 75

MAY BE SUBJECT TO A SO-CALLED BASKET MORTGAGE – BUT ONLY SO LONG AS THEY REMAIN IN ONE DEFINITELY LOCATED STOCK-PILE. THIS SECTION THEREFORE DOES NOT PROVIDE SUFFICIENT PROTECTION TO THE HOLDER OF A SECURITY INTEREST IN A SPECI-FIED PROPELLER.

SECTION 2 OF THE SUBSTITUTE AMEND-MENT AMENDS SECTION 504 OF EXISTING LAW TO EXEMPT SECURITY OWNERS OF BOTH AIR-CRAFT ENGINES AND PROPELLERS FROM LIA-BILITY WITHOUT FAULT FOR INJURY OR DAMAGE TO PERSONS OR PROPERTY ON THE SURFACE OF THE EARTH WHICH MIGHT BE CAUSED BY THESE INSTRUMENTS. THIS PRO-VISION CURRENTLY APPLIES ONLY IN FAVOR OF THOSE HOLDING A SECURITY TITLE OR OTHER SECURITY INTEREST IN AIRCRAFT.

IN 1948, SECTION 504 WAS ADDED TO THE ORIGINAL CIVIL AERONAUTICS ACT OF 1938 (62 STAT. 470) TO OVERCOME THE POSSIBLE AD-VERSE EFFECT ON SECURITY OWNERS OF VAR-IOUS STATE STATUTES MAKING AN AIRCRAFT OWNER OR OPERATOR ABSOLUTELY LIABLE FOR ANY DAMAGE CAUSED ON THE GROUND BY THE AIRCRAFT. ITS PURPOSE WAS TO AS-SURE THAT LIABILITY UNDER SUCH LAWS WOULD NOT ATTACH TO THE HOLDER OF A SECURITY INTEREST SOLELY BY VIRTUE OF THAT INTEREST. THIS SECTION WAS REEN-ACTED AS SECTION 504 OF EXISTING LAW. IT

App. 76

SHOULD BE STRESSED THAT THIS SECTION OF EXISTING LAW DOES NOT RELIEVE A SECURITY TITLEHOLDER FROM LIABILITY FOR INJURY OR DAMAGE CAUSED AS A RESULT OF HIS NEGLIGENCE, FOR EXAMPLE, AS A MANU-FACTURER OF FAULTY EQUIPMENT OR AS A LESSOR OF EQUIPMENT NEGLIGENTLY MAIN-TAINED BEFORE THE LEASE.

SECTIONS 3 AND 4 OF THE SUBSTITUTE AMENDMENT CONTAIN TECHNICAL AMEND-MENTS TO SUBSECTIONS (D) AND (B) OF SEC-TION 503 OF EXISTING LAW IN ORDER TO BRING ALL OF THE PROVISIONS OF THAT SEC-TION INTO CONFORMITY WITH THE SUBSTAN-TIVE CHANGES IN SUBSECTION (A) OF THAT SECTION MADE BY THE FIRST SECTION OF THE COMMITTEE SUBSTITUTE.

SECTION 3 OF THE COMMITTEE SUBSTI-TUTE AMENDS THE PROVISO CONTAINED IN SECTION 503(D) OF EXISTING LAW SO AS TO IN-CLUDE SPECIFICALLY IDENTIFIED PROPELLERS. THIS AMENDMENT HAS THE EFFECT OF EX-TENDING TO SECURITY INTERESTS IN SPECIF-ICALLY IDENTIFIED PROPELLERS RECORDED UNDER SECTION 503(A)(2) OF EXISTING LAW (AS AMENDED BY THIS LEGISLATION) THE SAME PRIORITY OVER SECURITY INTERESTS RECORDED UNDER THE SO-CALLED ‘BASKET MORTGAGE’ PROVISIONS OF SECTION 503(A)(3) OF EXISTING LAW AS NOW EXTENDED BY THAT

App. 77

PROVISO TO SECURITY INTERESTS IN SPECIF-ICALLY IDENTIFIED AIRCRAFT ENGINES.

SECTION 4 OF THE SUBSTITUTE AMEND-MENT AMENDS SECTION 503(F)(1) OF EXISTING LAW SO AS TO REQUIRE THE INDEXING OF CONVEYANCES OF SPECIFICALLY IDENTIFIED PROPELLERS IN THE SAME MANNER AS CON-VEYANCES RELATING TO IDENTIFIED AIRCRAFT AND AIRCRAFT ENGINES ARE NOW REQUIRED TO BE INDEXED BY THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY.

AGENCY RECOMMENDATIONS

AGENCY REPORTS SUBMITTED ON S. 1368 AND ON H.R. 4049, A COMPANION BILL IN-TRODUCED BY HON. JOHN BELL WILLIAMS, CHAIRMAN OF THE SUBCOMMITTEE ON TRANS-PORTATION AND AERONAUTICS, ALL WERE FAV-ORABLE. AGENCY REPORTS CONSIDERED BY THE COMMITTEE FOLLOW:

EXECUTIVE OFFICE OF THE PRESIDENT, BUREAU OF THE BUDGET, WASHINGTON, D.C., MAY 13, 1959.

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HON. OREN HARRIS,

CHAIRMAN, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

HOUSE OF REPRESENTATIVES, WASHING-TON, D.C.

MY DEAR MR. CHAIRMAN: THIS IS IN REPLY TO YOUR LETTERS OF MARCH 4 AND MAY 1, 1959, REQUESTING THE VIEWS OF THE BU-REAU OF THE BUDGET ON H.R. 5072, A BILL TO AMEND SECTIONS 503(A)(2) AND 504 OF THE FEDERAL AVIATION ACT OF 1958 TO FACILI-TATE FINANCING OF NEW JET AND TURBOJET AIRCRAFT, AND S. 1368, A SIMILAR BILL, AS AMENDED AND PASSED BY THE SENATE.

THESE BILLS WOULD BRING SPECIFIED ENGINES AND PROPELLERS WITHIN THE RE-CORDATION PROVISIONS OF TITLE V OF THE FEDERAL AVIATION ACT AND RELIEVE LEND-ERS AND LESSORS OF LIABILITY, RESULTING SOLELY BY REASON OF THEIR INTEREST AS LENDERS OR LESSORS, FOR DAMAGES CAUSED BY THIS EQUIPMENT, EXCEPT WHEN DAMAGES OCCUR WHILE SUCH EQUIPMENT IS IN THE ACTUAL POSSESSION OF SUCH PERSONS.

WE AGREE WITH THE DEPARTMENT OF COMMERCE, CIVIL AERONAUTICS BOARD, AND THE FAA THAT THE PROPOSED LEGISLATION

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SHOULD FACILITATE FINANCING EXPENSIVE EN-GINE AND PROPELLER EQUIPMENT REQUIRED BY NEW-TYPE AIRCRAFT. OF THE TWO BILLS, WE WOULD FAVOR S. 1368, AS AMENDED, IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE FAA, AND PASSED BY THE SENATE.

SINCERELY YOURS,

PHILLIP S. HUGHES, ASSISTANT DIRECTOR FOR LEGISLATIVE REFERENCE.

* * *

CIVIL AERONAUTICS BOARD, WASHINGTON, D.C. MAY 11, 1959.

HON. OREN HARRIS,

CHAIRMAN COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,


DEAR MR. CHAIRMAN: THIS IS IN RE-SPONSE TO YOUR REQUEST FOR THE VIEWS OF THE BOARD IN REGARD TO S. 1368, AN ACT TO AMEND SECTIONS 503 AND 504 OF THE FEDERAL AVIATION ACT OF 1958 TO FACILI-TATE FINANCING OF NEW JET AND TURBO-PROP AIRCRAFT.

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S. 1368 PROPOSES AMENDMENTS TO THE FEDERAL AVIATION ACT WHICH ARE DESIGNED TO FACILITATE THE FINANCING OF NEW AIR-CRAFT EQUIPMENT. INASMUCH AS THESE PROPOSALS ARE OF PRIMARY CONCERN TO THE ADMINISTRATOR OF THE FEDERAL AVIA-TION AGENCY WHO IS RESPONSIBLE FOR AD-MINISTERING THE RECORDING PROVISIONS OF TITLE V, OUR COMMENTS ARE GENERAL IN NATURE.

THE FIRST SECTION OF THE ACT WOULD AMEND PARAGRAPH (2) OF SUBSECTION 503(A) OF THE FEDERAL AVIATION ACT, TO PROVIDE FOR THE RECORDING BY THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY OF SPE-CIFICALLY IDENTIFIED AIRCRAFT PROPEL-LERS OF PRESCRIBED CAPACITY. THE SECOND SECTION OF THE BILL PROPOSES AN AMEND-MENT TO SECTION 504 OF THE ACT RELATING TO LIMITATIONS ON SECURITY OWNERS’ LIA-BILITY. THE THIRD AND FOURTH SECTIONS ARE TECHNICAL AMENDMENTS WHICH MERELY ADD REFERENCES TO PROPELLERS IN APPRO-PRIATE PLACES IN THE ACT, AND REQUIRE NO COMMENT.

THE FEDERAL AVIATION ACT PRESENTLY AUTHORIZES THE RECORDING OF LIENS ON AIRCRAFT AS WELL AS THE RECORDING OF LIENS ON AIRCRAFT ENGINES OF PRESCRIBED HORSEPOWER AND SPARE PARTS LOCATED AT

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SPECIFIED PLACES, THESE PROVISIONS FACIL-ITATE THE FINANCING AND ACQUISITION OF AIRCRAFT, ENGINES, AND SPARE PARTS, THE ACT DOES NOT, HOWEVER, AUTHORIZE THE SEPARATE RECORDING OF LIENS FOR AIR-CRAFT PROPELLERS.

WHILE THERE HAS BEEN NO APPARENT NEED FOR THE SEPARATE FINANCING OF PRO-PELLERS IN THE PAST, THE COST OF PROPEL-LERS AT THE PRESENT TIME IS SUCH THAT IT WOULD SEEM DESIRABLE TO EXPAND THE PROVISIONS OF THE ACT TO PROVIDE FOR THEIR SEPARATE FINANCING. THE BOARD THERE-FORE ENDORSES THE PROPOSED AMENDMENT TO SECTION 503(A) OF THE ACT TO AUTHORIZE THE SEPARATE RECORDING OF LIENS FOR AIR-CRAFT PROPELLERS.

WITH RESPECT TO THE AMENDMENT TO SECTION 504, IT SHOULD BE NOTED THAT THE ACT PRESENTLY CONTAINS PROVISIONS DE-SIGNED TO RELIEVE PERSONS HAVING A SE-CURITY INTEREST IN AIRCRAFT AND CERTAIN LESSORS OF AIRCRAFT, FROM LIABILITY SOLELY BY REASON OF SUCH STATUS OR INTEREST, FOR INJURY OR DEATH OF PERSONS, OR DAM-AGE TO PROPERTY, ON THE SURFACE CAUSED BY THE AIRCRAFT.

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THE AMENDMENT PROPOSED BY S. 1368 WOULD BROADEN OR CLARIFY THESE PROVI-SIONS BY EXPRESSLY MAKING THEM APPLICA-BLE TO PERSONS HAVING A SECURITY IN-TEREST OR INTEREST AS LESSOR IN AIRCRAFT ENGINES AND PROPELLERS. THE BOARD PER-CEIVES NO OBJECTION TO THIS AMENDMENT, AND ON THE BASIS THAT IT WOULD FACILI-TATE THE FINANCING OF ENGINES AND PRO-PELLERS SUPPORTS THE PROPOSAL.

THE PURPOSE OF THE BOARD IN SUPPORT-ING THE PROPOSED LEGISLATION IS TO PER-MIT AIR CARRIERS AND OTHER PURCHASERS OF CIVIL AIRCRAFT BROAD DISCRETION TO FINANCE ACQUISITION OF AIRCRAFT ENGINES AND PROPELLERS UNDER WHATEVER TERMS AND CONDITIONS MAY BE MOST APPROPRI- ATE AT THE TIME. IN THIS CONNECTION IT SHOULD BE NOTED THAT THE BOARD DOES NOT, BY ENDORSING THESE AMENDMENTS, NECESSARILY ENDORSE THE LEASING AR-RANGEMENTS BY PARTICULAR AIR CARRIERS OF NEW AIRCRAFT ENGINES AND PROPELLERS AS THE BEST METHOD OF FINANCING. HOW-EVER, THE BOARD DOES BELIEVE THAT UN-NECESSARY LEGAL IMPEDIMENTS OF LEASING ARRANGEMENTS OR TO THE UTILIZATION OF OTHER FINANCIAL DEVICES WHEREBY AIR CARRIERS MAY OBTAIN NEW EQUIPMENT, SHOULD BE REMOVED.

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THE BUREAU OF THE BUDGET HAS AD-VISED THAT THERE IS NO OBJECTION TO THE SUBMISSION OF THIS REPORT.

SINCERELY YOURS,

JAMES R. DURFEE, CHAIRMAN.

* * *

THE SECRETARY OF COMMERCE, WASHINGTON, D.C., APRIL 28, 1959.

HON. OREN HARRIS,



DEAR MR. CHAIRMAN: THIS IS IN REPLY TO YOUR LETTER OF MARCH 4, 1959, REQUESTING THE VIEWS OF THE DEPARTMENT ON H.R. 5072, A BILL TO AMEND SECTIONS 503(A)(2) AND 504 OF THE FEDERAL AVIATION ACT OF 1958 TO FACILITATE FINANCING OF NEW JET AND TURBOPROP AIRCRAFT.

THIS BILL HAS TWO PURPOSES, IT WOULD AMEND SECTION 503(A)(2) OF THE FEDERAL AVIATION ACT OF 1958, EXPANDING THE PRE-SENT RESPONSIBILITY OF THE ADMINISTRA-TOR OF THE FEDERAL AVIATION AGENCY FOR ESTABLISHING AND MAINTAINING A SYSTEM OF RECORDING OF ‘ANY LEASE, AND ANY

App. 84

MORTGAGE, EQUIPMENT TRUST, CONTRACT OF CONDITIONAL SALE, OR OTHER INSTRUMENT EXECUTED FOR SECURITY PURPOSES, WHICH LEASE OR OTHER INSTRUMENT AFFECTS THE TITLE TO, OR ANY INTEREST IN, ANY SPECIFI-CALLY IDENTIFIED AIRCRAFT ENGINE OR ENGINES OF 750 OR MORE RATED TAKEOFF HORSEPOWER FOR EACH SUCH ENGINE OR THE EQUIVALENT OF SUCH HORSEPOWER, AND ALSO ANY ASSIGNMENT OR AMENDMENT THEREOF OR SUPPLEMENT THERETO;’ SO AS TO INCLUDE ‘SPECIFICALLY IDENTIFIED AIR-CRAFT PROPELLERS’ CAPABLE OF ABSORBING 750 OR MORE RATED TAKEOFF SHAFT HORSE-POWER IN THE PRESENT COVERAGE OF THAT SECTION OF THE ACT. THE BILL WOULD ALSO AMEND SECTION 504 OF THE ACT, CONCERN-ING LIMITATION OF LIABILITY ON THE PART OF OWNERS OR SECURITY HOLDERS SO AS TO ADD ‘ENGINE, OR PROPELLER’ TO THE PRE-SENT COVERAGE OF ‘AIRCRAFT’ ALONE.

THE DEPARTMENT BELIEVES THAT THE CHANGES IN THE ACT RESULTING FROM EN-ACTMENT OF H.R. 5072 WOULD BE BENEFICIAL TO CIVIL AVIATION. ADDITION OF THE CATE-GORY OF PROPELLERS SPECIFIED IN SECTION 1 OF THE PROPOSED BILL CONSTITUTES AN IMPORTANT INCREASE IN THE LEGAL CON-VEYANCE RECORDING AUTHORITY OF THE

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FEDERAL AVIATION AGENCY. THE BILL REC-OGNIZES THE FACT THAT SUCH PROPELLERS ARE SUBSTANTIAL FACTORS IN AIRCRAFT OPERATIONS, AS WELL AS BEING VALUABLE ITEMS OF AIRCRAFT EQUIPMENT WHOSE LEASE, SALE OR MORTGAGE WARRANTS NO-TICE TO THE AGENCY.

SECTION 2 OF H.R. 5072, WHICH ADDS ‘EN-GINE, OR PROPELLER’ TO ‘CIVIL AIRCRAFT’ IN SECTION 504 OF THE ACT IN DEFINING THE LIMITATIONS OF SELLER, LESSOR, OR MORT-GAGOR LIABILITY FOR DAMAGES BY SUCH AIRCRAFT OR COMPONENTS, ALSO APPEARS TO BE A WORTHWHILE AMENDMENT TO THE PRESENT ACT. IT RECOGNIZES THE PRACTICAL DIFFICULTIES FACED BY SELLERS, LESSORS, OR MORTGAGORS OF AIRCRAFT, ENGINES, OR PROPELLERS IN UNDERTAKING TO AVOID CIR-CUMSTANCES AND EVENTS WHICH MIGHT LEAD TO LIABILITY SUITS FROM BUYERS, LES-SEES, MORTGAGEES, OR THIRD PARTIES FROM ALLEGED DAMAGES CAUSED BY AIRCRAFT, ENGINES, OR PROPELLERS NOT IN THE AC-TUAL POSSESSION OR CONTROL OF SELLER, LESSOR, OR MORTGAGOR.

THE PROVISIONS OF H.R. 5072 ARE OF PAR-TICULAR INTEREST TO CIVIL AVIATION AT THIS TIME. AIRLINES ARE UNDERGOING A MAJOR PROGRAM OF SHIFTING FROM PISTON-ENGINE TO JET-POWERED AIRCRAFT. THIS PROGRAM

App. 86

WILL REQUIRE A LARGE-SCALE SHIFTING OF AIRCRAFT AND COMPONENTS FROM ONE OWNER OR OPERATOR TO ANOTHER IN THE COURSE OF THESE ACTIVITIES IT IS IMPORTANT THAT THE FEDERAL AVIATION AGENCY HAVE ALL NECESSARY AUTHORITY REQUIRED FOR ORDERLY AND ADEQUATE RECORDING OF CHANGES IN TITLE OR INTEREST IN CIVIL AIRCRAFT UNDER ITS JURISDICTION, THE INCREASED NUMBER OF SHIFTS IN TITLE OR FINANCIAL INTEREST IN U.S.-FLAG AIR-CRAFT OCCASIONED BY FLEET CHANGEOVERS FROM PISTON-ENGINE TO JET AIRCRAFT ALSO MAKES IT ESSENTIAL THAT STATUTES RELAT-ING TO LIABILITY FOR DAMAGES BY AIRCRAFT OR AIRCRAFT ENGINE OR PROPELLERS BE AS EQUITABLE AS POSSIBLE. ATTENTION TO SUCH EQUITY IS ESPECIALLY IMPORTANT IN VIEW OF THE PROBABILITY THAT IN ORDER TO MAKE WAY FOR JET AIRCRAFT IN OUR FLEETS, MANY OF OUR PISTON-PROPELLED AIRCRAFT MAY BE LEASED OR SOLD TO FOREIGN OWN-ERS BEYOND PRACTICAL JURISDICTION OF U.S. SAFETY REGULATIONS.

THE DEPARTMENT RECOMMENDS ENACT-MENT OF H.R. 5072.

WE HAVE BEEN ADVISED BY THE BUREAU OF THE BUDGET THAT THERE WOULD BE NO

App. 87

OBJECTION TO THE SUBMISSION OF THIS RE-PORT TO YOUR COMMITTEE.

SINCERELY YOURS,

FREDERICK H. MUELLER, UNDER SECRETARY OF COMMERCE.

* * *

DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, WASHINGTON, D.C., JUNE 1, 1959.

HON. OREN HARRIS,

CHAIRMAN, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE


DEAR MR. CHAIRMAN: THIS IS IN RE-SPONSE TO YOUR REQUEST FOR THE VIEWS OF THE DEPARTMENT OF JUSTICE CONCERNING THE BILL (S. 1368) TO AMEND SECTIONS 503 AND 504 OF THE FEDERAL AVIATION ACT OF 1958 TO FACILITATE FINANCING OF NEW JET AND TURBOPROP AIRCRAFT.

SECTION 503 (A)(2) OF THE FEDERAL AVIA-TION ACT OF 1958 (49 U.S.C. 1403 (A(2)) REQUIRES THE ADMINISTRATOR OF THE FEDERAL AVIA-TION AGENCY TO ESTABLISH AND MAINTAIN A SYSTEM FOR THE RECORDING OF ANY LEASE, AND ANY MORTGAGE, EQUIPMENT TRUST,

App. 88

CONTRACT OR CONDITIONAL SALE OR OTHER INSTRUMENT EXECUTED FOR SECURITY PUR-POSES AND WHICH AFFECTS TITLE TO OR ANY INTEREST IN AIRCRAFT ENGINES OF A STATED HORSEPOWER. THE BILL WOULD AMEND SEC-TION 503(A)(2) BY BROADENING ITS COVERAGE TO INCLUDE THE RECORDING OF SUCH SE-CURITY INSTRUMENTS WHICH AFFECT INTER-ESTS IN ANY SPECIFICALLY IDENTIFIED AIRCRAFT PROPELLER CAPABLE OF ABSORB-ING A STATED HORSEPOWER.

SECTION 504 OF THE FEDERAL AVIATION ACT OF 1958 (49 U.S.C. 1404) PROVIDES THAT NO PERSON HAVING A SECURITY INTEREST IN, OR SECURITY TITLE TO, ANY CIVIL AIRCRAFT UNDER A CONTRACT OF CONDITIONAL SALE, EQUIPMENT TRUST OR OTHER INSTRUMENT OF SIMILAR NATURE, AND NO LESSOR OF ANY SUCH AIRCRAFT UNDER A LEASE OF 30 DAYS OR MORE, SHALL BE LIABLE BY REASON OF SUCH INTEREST OR TITLE FOR ANY INJURY, DEATH, OR DAMAGE TO OR LOSS OF PROPERTY CAUSED BY SUCH AIRCRAFT UNLESS THE AIRCRAFT IS IN THE ACTUAL POSSESSION OR CONTROL OF SUCH PERSON AT THE TIME OF THE INJURY, DEATH OR DAMAGE TO OR LOSS OF PROPERTY. THE BILL WOULD AMEND SEC-TION 504 OF THE ACT SO AS TO EXTEND THE IMMUNITY PROVISIONS OF THE SECTION WITH RESPECT TO ANY ‘ENGINE OF [sic] PROPELLER’ AS WELL AS ‘CIVIL AIRCRAFT.’

App. 89

UNDER CERTAIN PROVISIONS OF THE UNIFORM AERONAUTICS ACT, NOW IN FORCE IN MANY STATES, THE OWNER OF AN AIR-CRAFT IS ABSOLUTELY LIABLE (THAT IS, HE IS LIABLE WITHOUT REFERENCE TO WHETHER HE WAS IN CONTROL OF THE AIRCRAFT AT THE TIME OF THE ACCIDENT OR WAS NEGLIGENT IN ANY WAY UNDER GENERAL COMMON LAW TORT PRINCIPLES) FOR DAMAGES CAUSED BY THE ASCENT, DESCENT, OR FLIGHT OF THE AIRCRAFT, OR THE DROPPING OR FALLING OF ANY OBJECT THEREFROM. THE PURPOSE OF SECTION 504 IS TO ANTICIPATE THE POSSIBIL-ITY THAT THIS PROVISION OF THE UNIFORM AERONAUTICS ACT MIGHT BE CONSTRUED SO AS TO IMPOSE TORT LIABILITY UPON A PER-SON WHO, AT THE TIME OF THE ACCIDENT WAS THE RECORD OWNER OF THE AIRCRAFT EVEN THOUGH HE HELD TITLE ONLY AS SECURITY UNDER A CONDITIONAL SALE CONTRACT, MORTGAGE, EQUIPMENT TRUST, OR SIMILAR INSTRUMENT.

THE SUBJECT OF THIS LEGISLATION IS NOT A MATTER FOR WHICH THE DEPARTMENT OF JUSTICE HAS PRIMARY RESPONSIBILITY AND ACCORDINGLY WE MAKE NO RECOMMEN-DATION AS TO THE ENACTMENT OF THE BILL.

App. 90

THE BUREAU OF THE BUDGET HAS AD-VISED THAT THERE IS NO OBJECTION TO THE SUBMISSION OF THIS REPORT,

SINCERELY YOURS,

LAWRENCE E. WALSH, DEPUTY ATTORNEY GENERAL.

* * *

FEDERAL AVIATION AGENCY, WASHINGTON, D.C., MAY 21, 1959.

HON. OREN HARRIS,



DEAR MR. CHAIRMAN: THIS IS IN REPLY TO YOUR LETTER OF MAY 4, 1959, FOR A REPORT ON S. 1368, AN ACT TO AMEND SECTIONS 503 AND 504 OF THE FEDERAL AVIATION ACT OF 1958 TO FACILITATE FINANCING OF NEW JET AND TURBOPROP AIRCRAFT.

THE PURPOSE OF THIS ACT IS TO BRING WITHIN THE PROVISIONS OF TITLE V OF THE FEDERAL AVIATION ACT OF 1958 THOSE AIR-CRAFT PROPELLERS WHICH ARE SPECIFICALLY IDENTIFIED AND WHICH ARE CAPABLE OF AB-SORBING 750 OR MORE RATED TAKEOFF SHAFT HORSEPOWER.

App. 91

THE CURRENT PROVISIONS OF TITLE V OF THE FEDERAL AVIATION ACT PROVIDE FOR THE RECORDATION OF SECURITY INTERESTS IN AIRCRAFT AND SPECIFICALLY IDENTIFIED ENGINES, WHETHER OR NOT AFFIXED TO A SPECIFIC AIRCRAFT. IT ALSO PROVIDES FOR THE RECORDATION OF SECURITY INTERESTS IN AIRCRAFT ENGINES, PROPELLERS, APPLI-ANCES, AND SPARE PARTS, WHEN SUCH AIR-CRAFT ENGINES, PROPELLERS, APPLIANCES, OR SPARE PARTS ARE MAINTAINED BY CERTI-FIED AIR CARRIERS AT A DESIGNATED LOCA-TION OR LOCATIONS. THIS LATTER TYPE OF SECURITY DOCUMENT IS COMMONLY CALLED A BASKET MORTGAGE.

THE EXISTING LAW DOES NOT GRANT COVERAGE TO SPECIFICALLY IDENTIFIED PROPELLERS EXCEPT WHEN THEY ARE AF-FIXED TO AN AIRCRAFT WHICH IS COVERED BY A SECURITY DOCUMENT RECORDED AS PRO-VIDED IN TITLE V, OR WHEN THEY ARE COV-ERED BY A SO-CALLED BASKET MORTGAGE. PROPELLERS INSTALLED IN TRANSPORT CAT-EGORY AIRCRAFT OF THE TYPE NOW IN AIR CARRIER USAGE ARE EXTREMELY COMPLEX AND VERY EXPENSIVE. THIS ACT WOULD PER-MIT RECORDATION OF SECURITY DOCUMENTS RELATING TO ALL PROPELLERS CAPABLE OF ABSORBING 750 OR MORE RATED TAKEOFF SHAFT HORSEPOWER WHETHER OR NOT THEY

App. 92

ARE AFFIXED TO AN AIRCRAFT OR IN A BAS-KET-MORTGAGE STATUS. IT WOULD THUS EN-SURE GREATER PROTECTION TO THE HOLDER OF THE SECURITY INTEREST, AND WOULD FACILITATE THE FINANCING OF AIRCRAFT.

THE FEDERAL AVIATION AGENCY NOTES WITH APPROVAL THAT SECTION 3 AND SEC-TION 4 WERE ADDED TO S. 1368 BEFORE ITS PASSAGE. THE FEDERAL AVIATION ACT OF 1958 RECOGNIZED THAT SITUATIONS COULD ARISE WHERE A SPECIFICALLY IDENTIFIED ENGINE COVERED BY A MORTGAGE TO ONE CREDITOR WHEN BROUGHT INTO A SPECIFICALLY DE-SCRIBED LOCATION COULD ALSO BE SUBJECT TO A MORTGAGE BY ANOTHER CREDITOR.

IN ORDER TO AVOID THIS CONFLICT AND TO PROVIDE SUITABLE PRIORITY OF SUCH MORTGAGES, SECTION 503(D) WAS ADDED TO THE ACT. IT PROVIDED THAT A BASKET MORT-GAGE SHALL NOT BE EFFECTIVE AS TO ANY ENGINE BROUGHT TO THE LOCATION DE-SCRIBED IN SUCH MORTGAGE IS [sic] THE ENGINE IS IN FACT SUBJECT TO A SECURITY DOCUMENT RECORDED UNDER THE PROVI-SIONS OF SECTION 503(A)(2). SECTION 3 OF S. 1368 PROVIDES THE SAME PROTECTION FOR PROPELLERS BY AMENDING SECTION 503(D) OF THE FEDERAL AVIATION ACT TO INCLUDE THEM AS WELL AS ENGINES.

App. 93

THE FEDERAL AVIATION AGENCY ENDORSES S. 1368 AS PASSED BY THE SENATE ON APRIL 29, 1959. HOWEVER, IT MUST BE POINTED OUT TO THE CONGRESS THAT ITS ADOPTION WILL IMPOSE AN ADDITIONAL WORKLOAD ON THE AGENCY, AND WILL REQUIRE IT TO INCREASE THE AMOUNTS OF MONEY EXPENDED IN PROVIDING SERVICES UNDER TITLE V OF THE FEDERAL AVIATION ACT. DURING THE FISCAL YEAR 1957, THE CIVIL AERONAUTICS ADMIN-ISTRATION PROCESSED 2,675 CONVEYANCES AFFECTING TITLE TO, OR INTEREST IN, SPE-CIFICALLY IDENTIFIED ENGINES OF 750 OR MORE RATED TAKEOFF HORSEPOWER. IN THE FISCAL YEAR 1958, 2,159 SUCH CONVEYANCES WERE PROCESSED.

AS INDICATED BY THE FIGURES JUST GIVEN, IT CAN BE ANTICIPATED THAT THE NUMBER OF SECURITY DOCUMENTS AFFECT-ING TITLE TO SPECIFICALLY IDENTIFIED PRO-PELLERS PRESENTED FOR RECORDATION WOULD ALSO BE SIZABLE. IN ORDER TO HAN-DLE THIS ADDITIONAL WORK, THE AGENCY WOULD HAVE TO INCREASE BY AT LEASE THREE THE PRESENT COMPLEMENT OF PER-SONNEL ASSIGNED TO THE RECORDATION OF CONVEYANCES. THE INCREASE OF EXPENDI-TURES INVOLVED IS ESTIMATED AT THIS TIME TO BE BETWEEN $13,000 AND $15,000 PER AN-NUM.

App. 94

THE BUREAU OF THE BUDGET HAS INDI-CATED THAT IT INTERPOSES NO OBJECTION TO THE SUBMISSION OF THIS REPORT TO YOUR COMMITTEE,

SINCERELY YOURS,

JAMES T. PYLE (ACTING FOR E. R. QUESADA, ADMINISTRATOR).

App. 95

Public Law 86-81 – July 8, 1959

AN ACT

To amend sections 503 and 504 of the Federal Avia-tion Act of 1958 to facilitate financing of certain air-craft engines and propellers.

Be it enacted by the Senate and House of Repre-sentatives of the United States of America in Congress assembled, That paragraph (2) of section 503(a) of the Federal Aviation Act of 1958 is amended to read as follows:

“(2) Any lease, and any mortgage, equipment trust, contract of conditional sale, or other instrument executed for security purposes, which lease or other instrument af-fects the title to, or any interest in, any spe-cifically identified aircraft engine or engines of seven hundred and fifty or more rated takeoff horsepower for each such engine or the equivalent of such horsepower, or any specifically identified aircraft propeller capa-ble of absorbing seven hundred and fifty or more rated take off shaft horsepower, and also any assignment or amendment thereof or supplement thereto;”.

SEC. 2. Section 504 of the Federal Aviation Act of 1958 is amended to read as follows:

“LIMITATION OF SECURITY OWNERS LIABILITY

“SEC. 504. No person having a security interest in, or security title to, any civil air-craft, aircraft engine, or propeller under a

App. 96

contract of conditional sale, equipment trust, chattel or corporate mortgage, or other in-strument of similar nature, and no lessor of any such aircraft, aircraft engine, or propel-ler under a bona fide lease of thirty days or more, shall be liable by reason of such inter-est or title, or by reason of his interest as les-sor or owner of the aircraft, aircraft engine, or propeller so leased, for any injury to or death of persons, or damage to or loss of prop-erty, on the surface of the earth (whether on land or water) caused by such aircraft, air-craft engine, or propeller, or by the ascent, descent, or flight of such aircraft, aircraft en-gine, or propeller or by the dropping or fall-ing of an object therefrom, unless such aircraft, aircraft engine, or propeller is in the actual possession or control of such person at the time of such injury, death, damage, or loss.”

App. 97

H.R. REP. 103-180, H.R. Rep. No. 180, 103RD Cong., 1ST Sess. 1993, 1994 U.S.C.C.A.N. 818, 1993 WL 287624 (Leg.Hist.)

P.L. 103-272, REVISION OF TITLE 49, TRANSPORTATION, UNITED STATES

CODE REVISION OF TITLE 49, UNITED STATES CODE, “TRANSPORTATION” DATES OF CONSIDERATION AND PASSAGE

House: July 27, 1993 Senate: June 10, 1994

Cong. Record Vol. 139 (1993) Cong. Record Vol. 140 (1994)

House Report (Judiciary Committee) No. 103-180, July 15, 1993 (To accompany H.R. 1758)

Senate Report (Judiciary Committee) No. 103-265, May 19, 1994 to accompany H.R. 1758)

HOUSE REPORT NO. 103-180 July 15, 1993

[To accompany H.R. 1758]

The Committee on the Judiciary, to whom was referred the bill (H.R. 1758) to revise, codify, and enact without substantive change certain general and permanent laws related to transportation as subtitles II, III, and V-X of title 49, United States Code, “Transportation”, and to make other technical im-provements in the Code, having considered the same, reports favorably thereon with an amendment in the nature of a substitute and recommends that the bill as amended do pass.

The text of the amendment appears in italic type in the reported bill.

App. 98

EXPLANATION OF AMENDMENT

Inasmuch as H.R. 1758 was ordered reported with a single amendment in the nature of a substi-tute, the contents of this report explain that amend-ment.

STATEMENT

Purpose. – The purpose of H.R. 1758 is to restate in comprehensive form, without substantive change, certain general and permanent laws related to trans-portation and to enact those laws as subtitles II, III, and V-X of title 49, United States Code, and to make other technical improvements in the Code. In the restatement, simple language has been substituted for awkward and obsolete terms, and superseded, executed, and obsolete laws have been eliminated, This bill is a part of the program of the Office of the Law Revision Counsel of the House of Representa-tives, required by section 285b of title 2, United States Code, to prepare and submit to the Committee on the Judiciary of the House of Representatives, for enactment into positive law, the various titles of the United States Code.

Background. – In the Department of Transporta-tion Act of 1966, Congress mandated a codification of the transportation laws. Congressional committees also expressed a strong desire that the Interstate Commerce Act and related statutes be codified. Considerable progress was made toward this end from 1968 to 1972 by the Joint Interagency Codification

App. 99

Project, a joint effort of the Department of Transpor-tation, the Interstate Commerce Commission, and the Law Revision Counsel of the Committee on the Judi-ciary of the House of Representatives. More recently, in enacting section 312 of the Railroad Revitalization and Regulatory Reform Act of 1976, Congress re-quired the Interstate Commerce Commission to sub-mit to Congress by February 4, 1978, a proposed revision and codification of the laws related to inter-state commerce.

Effective in 1975, the Office of the Law Revision Counsel was established as a separate office in the House of Representatives with overall responsibility to prepare bills to codify and enact into positive law the remaining uncodified titles of the United States Code. In view of consistent congressional concern in having the transportation laws codified in title 49, the Law Revision Counsel concluded that work on completing the codification of those laws should be resumed. He therefore proposed to the Interstate Commerce Commission and the Secretary of Trans-portation that joint codification efforts be resumed, and they concurred.

The revision and codification of the Interstate Commerce Act and related laws as subtitle IV of title 49 was completed first because fewer provisions of law were involved and because of the statutory dead-line of February 4, 1978. The Act of October 17, 1978, Public Law 95-473, enacted subtitle IV into positive law.

App. 100

The following year a draft bill and accompanying draft report were prepared to codify in title 49 the balance of the general and permanent transportation laws. The drafts, in the form of committee prints, were circulated for comment to the departments and agencies concerned with transportation.

Comments on the draft bill were received and analyzed. Because of the large amount of legislative activity in the area of transportation law, including deregulation, it was decided to proceed with the codification of title 49 in 2 stages.

Accordingly, a bill was prepared and introduced during the 97th Congress as H.R. 6993. That bill, which codified certain general and permanent trans-portation laws in title 49 as subtitle I, the Depart-ment of Transportation, and chapter 31 as part of subtitle II, Motor Carrier Safety, became law on January 12, 1983 (Public Law 97-449, 96 Stat. 2413).

During the second session of the 100th Congress, a bill, H.R. 4774, was introduced that codified the balance of title 49 as subtitles II, III, and V-IX. Copies of this bill were circulated to interested members of the public and Government agencies. Comments were received and analyzed. In addition, a number of transportation bills were enacted during the 100th Congress and the first part of the 101st Congress affecting H.R. 4774. Consequently, a revised bill was introduced as H.R. 4956 on June 5, 1990.

H.R. 4956 was circulated for comment by the departments and agencies affected by the bill as well

App. 101

as for comment from the general public. As a result of comments received and the enactment of several transportation laws subsequent to the introduction of H.R. 4956, a substitute amendment was prepared and ordered favorably reported to the House of Rep-resentatives by the Committee. H.R. 4956 passed the House but did not pass the Senate because of the press of business during the final days of the 101st Congress.

Since a number of transportation laws were enacted during the final months of the last Congress, H.R. 4956, as passed by the House, required further updating. H.R. 4956 was revised to incorporate this newly-enacted legislation.

The revised bill was introduced at the beginning of the 102d Congress as H.R. 1537. This bill passed the House of Representatives on November 5, 1991, and was received in the Senate on November 12, 1991, and referred to the Senate Judiciary Commit-tee. As the result of legislation enacted since the bill was received in the Senate, the House-passed bill was updated to incorporate this legislation and a substi-tute amendment was prepared.

The substitute amendment was passed and the bill returned to the House at the end of the 102d Congress. The House met in a pro forma session and adjourned sine die. Consequently, H.R. 1537 failed of passage.

App. 102

After adjournment, the bill was further updated to incorporate transportation legislation enacted at the end of the last Congress.

The present bill, H.R. 1758, is a revision of H.R. 1537 from the 102d Congress. It codifies in title 49 the balance of the general and permanent transporta-tion laws as subtitle II, Other Government Agencies, subtitle III, General and Intermodal Programs, subtitle V, Rail Programs, subtitle VI, Motor Vehicle and Driver Programs, subtitle VII, Aviation Pro-grams, subtitle VIII, Pipelines, subtitle IX, Commercial Space Transportation, and subtitle X, Miscellaneous,

Revision of language. – To restate the laws related to transportation in one comprehensive title, it is necessary to make changes in language. Some of the changes are necessary to attain uniformity within the title. Others are necessary as the result of consol-idating related provisions of law and to conform to common contemporary usage. In making changes in the language, precautions have been taken against making substantive changes in the law.

Revision notes. – A revision note has been pre-pared for each section of revised subtitles II, III, and V-X of title 49. The revision notes explain the changes made in the source laws. Each note identifies the statutory basis or source of the section and explains significant changes in, and omissions of, language. When practical, word-for-word substitutions of lan-guage are identified and explained. Standard changes made throughout the revision to achieve internal

App. 103

consistency are not explained each time they are made. Citations to the United States Code are to title, followed by a colon, and ending with the section number. For example, section 1 of title 1, United States Code, is cited 1:1.

Standard changes. – Certain standard changes are made uniformly throughout the revised subtitles II, III, and V-X of title 49. The most significant are explained in the following paragraphs:

As far as possible, the statute is stated in the present tense and in the active voice. When there is a choice of 2 or more words, otherwise of equal legal effect, the more commonly understood word is used.

The word “shall” is used in the mandatory and imperative sense. The word “may” is used in the permissive and discretionary sense, as “is permitted to” and “is authorized to”. The words “may not” are used in a prohibitory sense, as “is not authorized to” and “is not permitted to”. The words “person may not” mean that no person is required, authorized, or permitted to do the act.

The words “any part of” mean “all or part of ” and “in whole or in part”.

The word “includes” means “includes but is not limited to”.

The word “considered” denotes the exercise of judgment. The word “deemed” is used when a legal fiction, or what may in some cases be a legal fiction,

App. 104

is intended. The word “is” is used for statements of fact and legal conclusions.

When a right is conferred, the words “is entitled” or their equivalent are used.

The first time a descriptive title is used in a section, the complete title is used. Thereafter, in the same section, a shorter title is used unless the context requires the complete title to be used. For example, “Secretary of State” is used the first time the title appears in a section. Subsequently, in the same section, the title “Secretary” is used.

“United States Government” is substituted for “United States” (when used in referring to the Gov-ernment), “Federal Government”, and other terms identifying the Government the first time the refer-ence appears in a section. Thereafter, in the same section, “Government” is used unless the context requires the complete term to be used to avoid confu-sion with other governments.

The word “law” is substituted for “Act” and “joint resolution” for clarity because the word “law” includes Acts and joint resolutions.

The word “record” includes all terms previously used for records, documents, accounts, reports, files, memoranda, papers, things, and other similar items.

The word “fine” is used when the violation is criminal in nature. The words “civil penalty” are used when the violation is non-criminal.

App. 105

The word “individual” is substituted for “person” when referring to a human being.

The words “under section ___” are used instead of “pursuant to section ___” and “in accordance with section ___”.

The word “such” is not used as a demonstrative adjective. The use of the word “each”, “any”, “every”, or “all” is confined to instances in which a doubt could arise if the word were not used.

The word “pay” includes all terms used to repre-sent salary, wages, pay, compensation, emoluments, and remuneration for services of employees of the United States Government.

Provisos are not used. An exception or limitation is introduced by the words “except that” or “but” or by placing the excepting or limiting provision in a sepa-rate sentence.

The words “committee of Congress” include a committee of either House of Congress, a joint com-mittee of Congress, or a subcommittee of any of those committees.

Substantive change not made. – As in other codification bills enacting titles of the United States Code-into positive law, this bill makes no substantive change in the law. It is sometimes feared that mere changes in terminology and style will result in chang-es in substance or impair the precedent value of earlier judicial decisions and other interpretations. This fear might have some weight if this were the

App. 106

usual kind of amendatory legislation when it can be inferred that a change of language is intended to change substance. In a codification law, however, the courts uphold the contrary presumption: the law is intended to remain substantively unchanged. The following authorities affirm this principle:

Stewart v. Kahn (11 Wall. 493, 502 (1871)),

Smythe v. Fiske (23 Wall. 374, 382 (1874)).

McDonald v. Hovey (110 U.S. 619, 628 (1884)).

United States v. Ryder (110 U.S. 729, 740 (1884)).

United States v. Sischo (262 U.S. 165, 168 (1923)).

Fourco Glass Co. v. Transmirra Products Corp. (353 U.S. 222, 227 (1957)).

Finley v. United States (490 U.S. 545, (1989)).

Trailer Marine Transport Corp. v. Federal Mari-time Commission (D.C. Cir., 602 F. 2d 379, 383 (1979)).

Atchison, Topeka and Santa Fe Railway Co. v. United States (7th Cir., 617 F. 2d 485, 490, 491 (1980)).

Walsh v. Commonwealth (224 Mass. 239, 112 N.E. 486, 487 (1916)).

State ex rel. Rankin v. Wilbaux County Bank (85 Mont. 532, 281 Pac. 341, 344 (1929)).

In re Sullivan’s Estate (38 Ariz. 387, 300 Pac. 193, 195 (1931)).

App. 107

Sigal v. Wise (114 Conn. 297, 158 Atl. 891, 894 (1932)).

Martin v. Dyer-Kane Co, (113 N.J. Eq. 88, 166 Atl. 227, 229 (1933)).

Norfolk & Portsmouth Bar Ass’n. v. Drewry (161 Va. 833, 172 S.E. 282, 285 (1934)).

Sutherland, Statutory Construction (4th ed., Sands, rev. perm. ed. 1985), secs. 28.10, 28.11.

Tables. – Tables are provided at the end of this report to show the disposition of laws affected by this codifi-cation.

COMMITTEE VOTE

At a meeting of the Committee on the Judiciary on July 14, 1993, a quorum being present, H.R. 1758 was approved by a voice vote and ordered reported.

STATEMENTS UNDER CLAUSE

(L)(3) AND (4) OF RULE XI

Since the purpose of H.R. 1758 is to codify chang-es in the law without making any substantive change in the law, no oversight findings or recommendations have been made with respect to the bill.

The enactment of this bill will have no inflation-ary impact on prices or cost in the operation of the national economy.

App. 108

The bill does not provide new budget authority, new spending authority described in section 401(c)(2) of the Congressional Budget Act of 1974, new credit authority, or an increase or decrease in revenues or tax expenditures.

The Director of the Congressional Budget Office has submitted the following letter reporting on the bill:

U.S. Congress, Congressional Budget Office, Washington, D.C., July 14, 1993

Honorable Jack Brooks, Chairman, Committee on the Judiciary, U.S. House of Representatives, Washington, D.C. 20515

Dear Mr. Chairman:

The Congressional Budget Office has reviewed H.R. 1758, a bill to revise, codify, and enact without substantive change certain general and permanent laws, related to transportation, as subtitles II, III, and V-X of title 49, United States Code, “Transporta-tion”, and to make other technical improvements in the Code. The bill was ordered reported by the House Committee on the Judiciary on July 14, 1993. We estimate that, no cost to the federal government or to state or local governments would result from enact-ment of this bill.

App. 109

Enactment of H.R. 1758 would not affect direct spending or receipts. Therefore, pay-as-you-go proce-dures would not apply.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff con-tact is Mark Grabowicz, who can be reached at 226-2860.

Sincerely,

Robert D. Reischauer

cc: Honorable Hamilton Fish, Jr. Ranking Minority Member

H.R. REP. 103-180, 6, 1993 WL 287624, 6)

SUBPART III – SAFETY

CHAPTER 441 – REGISTRATION AND RE-CORDATION OF AIRCRAFT

Sec. 44101. Operation of aircraft. 44102. Registration requirements. 44103. Registration of aircraft. 44104. Registration of aircraft components and

dealers’ certificates of registration. 44105. Suspension and revocation of aircraft certifi-

cates. 44106. Revocation of aircraft certificates for con-

trolled substance violations. 44107. Recordation of conveyances, leases, and

security instruments. 44108. Validity of conveyances, leases, and security

instruments.

App. 110

44109. Reporting transfer of ownership. 44110. Information about aircraft ownership and

rights. 44111. Modifications in registration and recordation

system for aircraft not providing air trans-portation.

44112. Limitation of Liability.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

In this section, the word “navigate” is omitted as being included in the definition of “operate aircraft” in section 40102(a) of the revised title.

In subsection (a), the words “Except as provided in subsection (b) of this section” are added for clarity. The words “a person may . . . an aircraft only when the aircraft is registered under section 44103 of this title” are substituted for “It shall be unlawful . . . any aircraft eligible for registration if such aircraft is not registered by its owner as provided in this section, or . . . any aircraft not eligible for registration” for clarity and to eliminate unnecessary words.

In subsection (b), before clause (1), the words “A person may operate an aircraft in the United States that is not registered” are substituted for “may be operated and navigated without being so registered” and “may . . . permit the operation and navigation of aircraft without registration” for clarity. In clause (2), the words “identified in a way” are substituted for

App. 111

“identified, by the agency having jurisdiction over them, in a manner” to eliminate unnecessary words.

In subsection (a), before clause (1), the words “may be registered” are substituted for “shall be eligible for registration”, and the words “under sec-tion 44103 of this title” are added, for clarity. The words “only when” are substituted for “if, but only if ” for consistency. In subclause (C), the words “not a citizen of the United States” are substituted for “(other than a corporation which is a citizen of the United States)” to eliminate unnecessary words. The word “lawfully” is omitted as surplus.

In subsection (b), the words “In carrying out subsection (a)(1)(C) of this section” are added because of the restatement. The words “by regulation” are omitted as unnecessary because of 49:322(a).

In subsection (a)(1), the words “On application” are substituted for “upon request”, and the words “meets the requirements of section 44102 of this title” are substituted for “eligible for registration”, for consistency in this subchapter. The text of 49 App.:1401(d) is omitted as unnecessary because of 49:322(a).

App. 112

In subsection (b)(1)(B), before subclause (i), the words “after the one-year period beginning on the date of the revocation” are substituted for “before the end of such five-year period (but not before the end of the one-year period beginning on the date of such revocation)” for clarity and to eliminate unnecessary words. The words “otherwise meets the requirements of section 44102 of this title” are substituted for “is otherwise eligible for registration under this section” because of the restatement. The words “denial of a certificate” are substituted for “revocation of the certificate” for clarity.

In subsection (c), before clause (1), the words “A certificate of registration” are substituted for “Regis-tration” for clarity. In clause (2), the words “by a particular person” are omitted as surplus.

In this section, before clause (1), the words “prescribe regulations” are substituted for “establish reasonable rules and regulations” in 49 App.:1402 and “by such reasonable regulations” in 49 App.:1405(1st sentence) because of 49:322(a). In clause (1), the words “and no aircraft engine, propel-ler, or appliance shall be used in violation of any such rule or regulation” are omitted as surplus because of section 46301 of the revised title. In clause (2), the words “in connection with” are omitted as surplus.

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The words “when the aircraft no longer meets” are substituted for “for any cause which renders the aircraft ineligible” for consistency.

In subsection (b)(2), the words “knowing that the aircraft was to be used for the activity described in paragraph (1)(A) of this subsection” are substituted for “with knowledge of such intended use” for clarity.

In subsection (a)(1) and (2), the words “title to” are omitted as being included in “interest in”.

In subsection (a)(2), before subclause (A), the word “instruments” is substituted for “any mortgage, equipment trust . . . or other instrument” because it is inclusive. The word “supplement” is omitted as being included in “amendments”.

In subsection (a)(3), the words “The Secretary of Transportation shall also record under the system” are omitted as unnecessary because of the restate-ment.

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In subsections (a)(3) and (c), the words “lease, or instrument” are substituted for “other instrument” for clarity and consistency in this subchapter.

In subsections (b) and (d), the words “or loca-tions” are omitted because of 1:1.

In subsection (b), the words “recorded under subsection (a)(2)(C) or (D) of this section” are added for clarity. The words “lease or instrument” are sub-stituted for “instrument” for clarity and consistency in this subchapter.

In subsection (c), before clause (1), the words “by regulation” are omitted because of 49:322(a). In clause (2), the words “possession of the United States” are substituted for “possession thereof ” for clarity.

In subsection (d), the words “lease, and instru-ment” are substituted for “other instruments” for clarity and consistency in this subchapter. In clause (1), the words “of the time and date of before “re-cordation” are omitted as unnecessary because of the restatement. In clause (2), before subclause (A), the words “in files to be kept for that purpose” are omit-ted as unnecessary. In subclause (A), the words “location specified in a lease or instrument recorded under subsection (a)(2)(C) or (D) of this section” are substituted for “in the case of an instrument referred to in subsection (a)(3) of this section, the location or locations specified therein” for clarity and consistency in this subchapter.

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In subsection (a), before clause (1), the words “conveyance, lease, or instrument executed for securi-ty purposes” are substituted for “conveyance or in-strument” for clarity and consistency in this subchapter. The words “in respect of such aircraft, aircraft engine or engines, propellers, appliances, or spare parts” are omitted as surplus. The text of 49 App.: 1403(c)(proviso words before semicolon) is omitted because of section 7(d) of this bill. In clause (1), the words “person making the conveyance, lease, or instrument” are substituted for “the person by whom the conveyance or other instrument is made or given” to eliminate unnecessary words and for con-sistency in this subchapter.

In subsection (b), before clause (1), the words “When a conveyance, lease, or instrument is recorded under section 44107 of this title . . . from the date of filing” are substituted for “Each conveyance or other instrument recorded by means of or under the system provided for in subsection (a) or (b) of the section shall from the time of its filing for recordation” for clarity and consistency in this subchapter and to eliminate unnecessary words. In clause (1), the words “is valid” are substituted for “Provided, That . . . shall not be affected” for consistency in this subchapter. The words “or engines . . . or propellers” are omitted because of 1:1. In clause (2), the words “is valid” are substituted for “shall be effective” for consistency in this subchapter. The words “for items at the location

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designated in the lease or instrument” are substitut-ed for “which may from time to time be situated at the designated location or locations and only while so situated” for clarity and to eliminate unnecessary words.

In subsection (c)(1), the words “conveyance, lease, or” are added for consistency in this subchapter. The words “the conveyance, lease, or instrument” are substituted for “therein”, and the words “it is pre-sumed” are substituted for “it shall constitute pre-sumptive evidence”, for clarity.

In subsection (d)(2), the words “lease or instru-ment” are substituted for “instrument” for clarity and consistency in this subchapter.

In subsection (a), the text of 49 App.:1509(f)(last sentence) is omitted as unnecessary.

In subsection (b)(1), the words “Within 30 days after the date of enactment of subsection (f) of section 1109 of the Federal Aviation Act of 1958 as added by this subsection” are omitted as obsolete.

In clause (1), the words “each certificate of regis-tration issued under section 44103 of this title and each certificate issued under section 44704 of this

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title” are substituted for “certificates of registration, or aircraft certificates” for clarity and because of the restatement.

In clause (2), the words “recording transactions” are substituted for “recording of discharges and satisfactions of recorded instruments, and other transactions” to eliminate unnecessary words. The words “title to” are omitted as being included in “interest in”. The words “to decide” are substituted for “to facilitate the determination” to eliminate unnec-essary words. The words “related to” are substituted for “dealing with” for clarity. The word “spare” is added for consistency in this section.

In subsection (c)(3)(D), the words “corporations and others” are omitted as surplus.

In subsection (d)(1), the words “Not later than September 18, 1989” and “final” are omitted as obso-lete. The words “Administrator of Drug Enforcement” are substituted for “Drug Enforcement Administra-tion of the Department of Justice” because of section 5(a) of Reorganization Plan No. 2 of 1973 (eff. July 1, 1973, 87 Stat. 1092).

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In subsection (a), clauses (1) and (3) are derived from 49 App.:1404(2d-57th words). Clause (2) is added for clarity. In clause (1), the words “bona fide” are omitted as surplus. In clause (3), the word “na-ture” is omitted as surplus.

In subsection (b), before clause (1), the words “personal injury, death” are substituted for “any injury to or death of persons”, and the words “on land or water” are substituted for “on the surface of the earth (whether on land or water)”, to eliminate unnecessary words. In clause (2), the words “ascent, descent, or” and “dropping or” are omitted as surplus.

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49 U.S.C.A. § 44112. Limitation of Liability

(a) Definitions. – In this section –

(1) “lessor” means a person leasing for at least 30 days a civil aircraft, aircraft engine, or propel-ler,

(2) “owner” means a person that owns a civil aircraft, aircraft engine, or propeller.

(3) “secured party” means a person having a se-curity interest in, or security title to, a civil air-craft, aircraft engine, or propeller under a conditional sales contract, equipment trust con-tract, chattel or corporate mortgage, or similar instrument.

(b) Liability. – A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual posses-sion or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of –



CREDIT(S)

(Added Pub.L. 103-272, § 1(e), July 5, 1994, 108 Stat. 1167.)

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HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1994 Acts.

44112 49 App.:1404, Aug. 23, 1958, Pub.L. 85-726, § 504, 72 Stat. 774; restated July 8, 1959, Pub.L. 86-81, § 2, 73 Stat. 180.

In subsection (a), clauses (1) and (3) are derived from 49 App.:1404(2d-57th words), Clause (2) is added for clarity. In clause (1), the words “bona fide” are omit-ted as surplus. In clause (3), the word “nature” is omitted as surplus.

In subsection (b), before clause (1), the words “per-sonal injury, death” are substituted for “any injury to or death of persons”, and the words “on land or water” are substituted for “on the surface of the earth (whether on land or water)”, to eliminate unneces-sary words. In clause (2), the words “ascent, descent, or” and “dropping or” are omitted as surplus. House Report No. 103-180.

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REPORT

OF THE

COMMITTEE ON A UNIFORM AVIATION ACT

To the National Conference of Commissioners on Uni-form State Laws:

The Committee on a Uniform Aviation Act re-spectfully reports:

AMERICAN LEGISLATION IN 1921

In a number of American states in 1921, legisla-tion was adopted upon the subject of the Law of Avia-tion. A condensed summary of the more important Acts is given below.

California. (Laws of 1921, Chap. 783.) Definition of “aircraft,” “aeronaut,” “fly,” and “voyage”; applies to intrastate flight alone; requires registration of air-craft kept in State with Superintendent of the Motor Vehicle Department; all aircraft shall bear markers; all aeronauts required to be licensed by Superinten-dent of Motor Vehicle Department; licenses of three classes, namely, (1) to operate spherical balloons; (2) to operate dirigible balloons; (3) to operate airplanes or heavier than air machines; Superintendent may sus-pend or revoke registration or license; non-residents do not require registration or licensing except in the case of an exhibition flight; aeronauts forbidden to engage in aerial acrobatics below 1500 feet or over populated or built-over districts, or over exhibitions, and aeronauts must, in flying over cities, be at such a height as to enable them to glide to the ground in

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safety; Federal aircraft and aeronauts excepted; Act to control all aerial navigation in state until Federal government assumes charge of it, at which time the State Act is to cease operation.

Connecticut. (Laws of 1921, Chap. 207) Defines “aircraft,” “pilot,” “flight,” “known established recog-nized field or place of landing,” “emergency place of landing,” and “limits of towns, cities, or boroughs of Connecticut”; all aircraft used in intrastate flight must be registered with Commissioner of Motor Vehicles; must bear markers; all pilots must obtain licenses from Commissioner of Motor Vehicles; licenses of three classes, namely: (1) to operate free balloons, (2) to operate dirigible balloons, (3) to operate airplanes, hydroplanes, seaplanes, flying boats, or heavier than air machines; Commissioner may suspend or revoke registration or license; non-residents who have been licensed in their states and army or navy aeronauts may operate thirty days in any year without licensing in Connecticut; trick or acrobatic flying over towns, cities, or boroughs, diversion of the aircraft from a normal flight except over landing places, flying over a city or borough at a height lower than that enabling the aircraft to glide to an open place, and flying within city or borough limits at lower than 2,000 feet except in landing or taking off, all forbidden; drop-ping of objects, except over place provided therefor, forbidden, and all equipment to be fastened to the machine; passing to be on the right, and lighter than air machines to have right of way; pilots to be liable for their negligence and if pilot is agent or employee, either shall be liable for the pilot’s negligence.

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Kansas. (Laws of 1921, Chap. 196.) Aircraft Board of three members established; duty to super-vise aerial navigation, inspect aircraft, license pilots, prescribe regulations, and mark aviation fields; defini-tion of “aircraft,” “pilot,” “flight,” “limits of a city,” “sole station”; all aircraft must be registered with the Board and all pilots must be licensed by the Board. Non-resident flyers who have complied with the laws of their respective states may fly thirty days in a year in Kansas without registration or licensing if not engaged in commercial flying; aircraft to display number plates; Board to prescribe regular inspec-tions; forbidden to engage in acrobatic or trick flying over limits of a city or to fly over city at a lower height than one enabling the aircraft to glide to an open place, or over any premises at a lower altitude than 250 feet, but ‘these restrictions are not to apply to a fog, forced landing, or to landing or taking off; dropping ballast, instruments, tools, containers, un-less over a place established for that purpose, forbid-den, and all equipment to be fastened to the machine; cities may acquire, by purchase or lease, municipal aviation fields; Act not to apply to government air-craft or pilots.

New Jersey. (Laws of 1921, Chap. 124.) Unlaw-ful to drive airplane over crowd at exhibition at less altitude than 2,000 feet, except over fairs; penalty provided.

Oregon. (Laws of 1921, Chap. 45.) State Board of Aeronautics of five members created; state licens-ing to fly within the state necessary unless a Federal

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license has been received or aeronaut is in military or naval service, or unlicensed civilian is accompanied by a licensed pilot; prohibition of flight endangering groundsmen, aeronauts, or passengers, also flight over thickly settled parts of towns and cities except in landing or taking off, also acrobatics over crowds, also dropping of objects except over flying grounds and open water; landing places may be designated by the Board or other public officials; regulations regarding operation may be published by the Board, to take effect when approved by the Governor, and published in at least one newspaper printed or published in each county in the state; flying over military or naval grounds or taking photographs of the same prohibited; violation of the provisions of the Act made a misde-meanor punishable by a fine of not more than $200, or imprisonment for not more than 60 days, or both.

Oregon. (Laws of 1921, Chap. 49.) Owners of air-craft must register aircraft, before flight, with Secre-tary of State and pay registration fee of $10.00.

Oregon. (Laws of 1921, Chap. 113.) Incorporated towns or cities may condemn private property for aviation field or park.

Minnesota. (Laws of 1921, Chap. 433.) Operation of aircraft over cities of the first class lower than 2,000 feet and when engaged in trick flying or aerial acrobatics, prohibited; establishment of landing field within 1,000 feet of public school or other educational institution wherein pupils under the age of 16 are en-rolled, is forbidden; violation of the Act a misdemeanor

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and punishable by a fine of not more than $1,000 or imprisonment of not to exceed 60 days, or both.

Maine. (Laws of 1921, Chap. 161.) Unlawful to operate aircraft in the state unless the pilot is li-censed and the aircraft registered by the Secretary of State, the Joint Army and Navy Board on Aeronautic Cognizance, or a Federal Board or Department estab-lished by Congress; Act does not apply to military or naval aviators or aircraft as far as licensing is con-cerned; flight over buildings, persons, or animals, in such a manner or at such an altitude as to endanger the aeronaut’s life, or the lives or safety of those below or the safety of himself and passengers, forbid-den; unusual or dangerous maneuvers over massed assembly and the dropping of objects from aircraft, except over grounds devoted to flying, or over open water, forbidden; landing of aircraft in highways, public parks or other public grounds, without permis-sion, except in case of emergency, forbidden; muni-cipal officers may designate and regulate landing places within city limits, but no power of condemna-tion; penalty for violations, fine of from $10 to $500, imprisonment of from one to six months, or both.

Indiana. (Laws of 1920, Chap. 48.) Cities and counties authorized to acquire aviation fields by con-demnation or otherwise and to promulgate rules for their management.

Montana. (Laws of 1921, Chap. 238.) Prohibits use of airplanes in hunting.

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Nebraska. (Laws of 1921, Chap. 165.) Allows cities to acquire and establish aviation fields.

North Carolina. (Laws of 1919, Chap. 38.) Hunt-ing of wild fowls with airplanes unlawful.

Utah. (Laws of 1921, Chap. 35.) Authorizes County Commissioners to lay out and manage land-ing fields and hangars.

PROPOSED FEDERAL LEGISLATION DURING THE PAST YEAR

Since March, 1921, when Mr. Bogert’s paper on “Problems in Aviation Law” was published, the follow-ing Bills on the subject of Aviation have been intro-duced in Congress:

H. R. 202, by Mr. Kahn (April 11, 1921). Estab-lishes a Bureau of Air with power to control “all matters pertaining to aerial traffic and navigation,” and with the duty “to further the development of aeronautics for commercial purposes, and, in general, to foster, develop, and promote all matters pertaining to aeronautics, including the selection of national air ways”; is principally concerned with the national defence.

H. R. 201, by Mr. Kahn (April 11, 1921). Estab-lishes an Air Navigation Commission; proposes to give to it power to regulate all aircraft and all flight within the United States, except aircraft built for experiment and flown within three miles of the factory; declares that the air is within the admiralty jurisdiction of the Federal courts.

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H. R. 3718, by Mr. Morin (April 15, 1921). Estab-lishes a Department of Aeronautics for the control of all aviation; no details regarding commercial avia-tion, but is principally concerned with the govern-ment air service.

H. R. 4395, by Mr. Curry (April 19, 1921). Estab-lishes a Department of Aeronautics and a separate Air Service as a part of the national defence; is prin-cipally concerned with national defence, but inci-dentally purports to regulate all aeronautics; declares that all navigable air is within the admiralty jurisdic-tion of the Federal courts.

S. 2448, by Mr. Wadsworth (August 22, 1921). Establishes a Bureau of Civil Aeronautics within the Department of Commerce to control foreign flight, in-terstate flight and flight over navigable streams, post roads, government buildings, the District of Columbia, territories, dependencies, reservations, and national parks; declares that the district courts of the United States have exclusive jurisdiction over all claims and controversies involving aircraft, airdromes and air stations, and over owners, lessees, and operators.

H. R. 9184, by Hicks (November 17, 1921). Same as S. 2448, by Mr. Wadsworth.

H. R. 9657, by Mr. Hicks (December 20, 1921). Very similar to S. 2448 and H. R. 9184.

S. 3076, by Mr. Wadsworth. (Passed by the Sen-ate, Feb. 13, 1922.) Establishes a Bureau of Civil Aero-nautics in the Department of Commerce; regulates

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aviation in interstate or foreign commerce and over the District of Columbia, the territories, dependen-cies, reservations, national parks, and other places or buildings over which the United States has jurisdic-tion. This Bill was referred to the Committee on Interstate Commerce in the House of Representa-tives. Chairman Winslow of that Committee reported shortly after the Bill was received, that his Commit-tee regarded the Bill very unfavorably, and did not expect to report it out.

The National Advisory Committee for Aeronau-tics, in its annual report for 1921, made the following statement regarding its recommendations on the sub-ject of legislation:

The Committee renews its previous rec-ommendations for the establishment of a bureau of air navigation in the Department of Commerce, for the Federal regulation and licensing of air navigation, and to aid gener-ally in the development of commercial avia-tion. The committee is not unmindful of the legal sentiment that a constitutional amend-ment should first be adopted before such legislation is enacted, on the ground that effective regulation of air navigation as pro-posed would otherwise be unconstitutional as violating the rights of private property and encroaching upon the rights of the States. To postpone such legislation until a consti-tutional amendment can be proposed and ratified would have the effect of greatly retarding the development of commercial

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aviation, with no assurance that sufficient popular interest would ever be aroused to ac-complish such an amendment. The commit-tee is of the opinion that the most effective course to be followed for the development of aviation would be to first enact the legis-lation deemed necessary for the Federal regulation of air navigation and the encour-agement of the development of civil aviation, and let the question of the constitutionality of such legislation be tested in due course. In the meantime, there would be development in civil and commercial aviation, and if even-tually the legislation which made possible such development should be definitely de-termined to be unconstitutional there would then, in all probability, be sufficient public interest in the subject and popular demand to adopt an amendment to the Constitution.

CONFERENCE AT WASHINGTON, FEBRUARY 25, 1922

A conference was held at the New Willard Hotel, February 25, 1922, between the Committee of the American Bar Association on the Law of Aeronautics, this Committee, and a number of gentlemen interested in the development of aeronautics. Invitations were extended to all persons of whom the Committees had any knowledge, who were interested in aviation as government officials, manufacturers, operators of air-craft, and in some cases, as flyers.

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The following gentlemen attended the conference, and, in nearly every case, gave their views on the subject of legislation with respect to aeronautics:

Major General Mason M. Patrick, Chief of Air Service, U. S. A.; Rear Admiral William A. Moffat, Chief of Bureau of Aeronautics, U. S. N.; Rear Admiral W. F. Fullam, U. S. N.; Colonel Frederick M. Brown, U. S. A.; Major Elza C. Johnson, Judge Advo-cate, U. S. A.; Mr. Gordon Lee, Chief, Automotive Division, Department of Commerce; Mr. E. S. Gregg, Chief, Transportation Division, Department of Com-merce; Mr. Arthur K. Kuhn, 120 Broadway, New York, Member of the New York Bar, Secretary of the In-ternational Law Association, American Branch; V. S. Clark, Aeronautical Engineer, Dayton-Wright Co., Dayton, Ohio; Mr. Edmund Ely, National Aircraft Underwriters Association, 100 William St., New York City; Mr. Howard E. Coffin, Hudson Motor Car Co., Detroit, Mich., Navy Consulting Board, Aero Club of America; Mr. J. F. Victory, Assistant Secretary, National Advisory Committee for Aeronautics, Wash-ington, D. C.; Mr. Samuel S. Bradley, Aeronautical Chamber of Commerce, New York City; Mr. Chester W. Cuthell, General Counsel, Curtiss Aeroplane and Motor Corporation; Mr. F. H. LaGuardia, 276 Fifth Ave., New York City; Mr. H. E. Hartney, Executive Secretary, Aero Club of America, Mills Bldg., Wash-ington, D. C.; Mr. Bibbins, Department of Transpor-tation, U. S. Chamber of Commerce; Mr. Chas. Thaddeus Terry, National Aircraft Association, 100 Broadway, New York City; General Nathan William

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MacChesney, Chicago Air Board, Chicago, Ill.; Mr. Temple N. Joyce, 709 Equitable Bldg., Baltimore, Md., Commercial Aviation and Maryland State Avia-tion Commission; Mr. F. H. Russell, Vice President, Curtiss Aero and Motor Corporation; Mr. C. F. Egge, General Superintendent, Air Mail, Washington, D. C.; Mr. J. Nelson Frierson, Professor of Law, University of South Carolina, Columbia, S. C.

The consensus of opinion of those who attended the conference was to the effect that Federal legisla-tion should be pushed as much as possible, and that state legislation should be held in abeyance until Federal legislation had developed and it was seen what portion of the field was open to state legislation. There was, of course, general opposition by manufac-turers and operators to the clause in the proposed Uniform State Act which places absolute responsibil-ity on owner and operator for damage.

At the conclusion of the public hearing, the two Committees went into conference, and agreed that Federal legislation was desirable, that it should be enacted as soon as possible, and that the Committees should cooperate for the purpose of aiding in drafting and passing such legislation; and it was agreed that it was undesirable to bring forward a constitutional amendment to give to the Federal government exclu-sive authority over aviation until the initial Federal legislation had been enacted, because such an amend-ment would bring about delay and its necessity was doubtful; and it was agreed that some state legisla-tion on the subject of regulation of aeronautics would

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be necessary, even if the Federal government took control of all licensing and registration of craft, and the sentiment seemed to be that the Committee of the Conference on Uniform State Laws should endeavor to perfect its Bill and present it to the Conference in August, 1922, for such action as the Conference should deem desirable.

RECENT DECISIONS OF THE UNITED STATES SUPREME COURT REGARDING REGULATION

OF INTRASTATE COMMERCE

In Railroad Commission of Wisconsin vs. The Chicago B. & Q. R. Co., 42 Sup. Ct. Rep. 232, decided February 27, 1922, and State of New York vs. the United States, 42 Sup. Ct. Rep. 239, decided Febru-ary 27, 1922, the United States Supreme Court went very far in holding that the Interstate Commerce Commission might regulate intrastate railroad fares. They said that if the intrastate fares were so low as to discriminate against interstate commerce and en-danger the financial condition of the railroad as an interstate carrier, the Interstate Commerce Commis-sion could increase the intrastate rates. The following significant sentence appears in the first named case:

Commerce is a unit and does not regard state lines, and while under the Constitution, interstate and intrastate commerce are ordinarily subject to regulation by different sovereignties, yet when they are so min- gled together that the supreme authority, the Nation, cannot exercise complete effective

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control over interstate commerce without in-cidental regulation of intrastate commerce, such incidental regulation is not an inva- sion of state authority or a violation of the proviso.

In the opinion of the Committee the Supreme Court has gone so far in allowing the regulation of intrastate commerce by a Federal agency, that there is no doubt that this court would support a Federal statute giving the Federal government exclusive power to register aircraft, license pilots, and establish rules for aerial navigation. If an intrastate aircraft is not inspected and not registered, its flight may endanger the safety of aircraft engaged in interstate commerce; if a pilot engaged in intrastate flight alone is un-skilled and unlicensed, his conduct may well endanger the safety of pilots engaged exclusively in interstate flight; and if the rules for intrastate aerial navigation are different from those applying to interstate flight, confusion and danger to interstate flight may well ensue.

While the Committee, therefore, still believes, as it stated last year, that, constitutionally, intrastate flight should be left to the regulation of the States, it has come to the conclusion that the Supreme Court of the United States will almost certainly sustain an all-inclusive Federal act for the regulation of aviation, and that, therefore, it is wise to omit the sections of the Uniform State Act which have to do with regu-lation of aviation and licensing of aeronauts and aircraft.

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Nearly every one agrees that Federal control of licensing and Federal regulations are desirable ends, in the interest of uniformity, if they can be accom-plished constitutionally. These recent decisions seem to remove the doubts on the subject of constitution-ality. It seems better, therefore, to abandon the field of rules and regulations and licensing of craft and pilots to the Federal government, and confine the State act to the elementary principles concerning the lawfulness of flight, responsibility for damages, and similar matters. If an all-inclusive Federal bill should later be passed and held unconstitutional as to intra-state flight, a subsequent supplementary State act could easily be drafted.

RECOMMENDATIONS OF THE COMMITTEE

The Committee appends hereto the proposed Uniform State Law for Aeronautics as revised at the August, 1921, meeting of the Conference, with some minor amendments which the Committee believes should be made in the light of recent discussion.

As is evident from the foregoing report, the States are acting rather rapidly in the enactment of legisla-tion regarding aeronautics. It would seem desirable, if possible, to perfect a brief State act regarding the fundamental principles of law applicable to flight, so that aeronauts and aerial navigation companies may act with certainty and assurance.

Matter which has been inserted by the Commit-tee into the various sections since the meeting of the

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Conference in August, 1921, is printed in italics, and matter which has been omitted by the Committee since that conference, is bracketed.


NELLIS E. CORTHELL CHARLES V. IMLAY W. A. MORGAN W. H. STAAKE A. T. STOVALL GEORGE B. YOUNG GEORGE G. BOGERT, Chairman.

SECOND TENTATIVE DRAFT

OF

PROPOSED UNIFORM LAW FOR AERONAUTICS1

Be it enacted by:

SECTION 1. [Definition of terms] In this Act, “air-craft” includes balloon, airplane, hydroplane, and every other vehicle [apparatus] used for navigation [flight] through the air. A hydroplane, while at rest on water and while being operated on or immediately above water, shall be governed by the rules regarding water navigation; while being operated through the air otherwise than immediately above water, it shall

1 “Aeronautics” has been substituted for “aviation” and “aeronaut” has been substituted for “aviator” throughout. “Aeronautics” covers the whole field of aerial navigation, while “aviation” is confined to flight in heavier than air machines.

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be treated as an aircraft.2 [A hydroplane shall be re-garded as a watercraft while it is being operated on the waters of this State.]

“Aeronaut” includes aviator, pilot, balloonist, and every other person having any part in the operation [or direction] of aircraft while in flight.

“Passenger” includes any person riding in an aircraft, but having no part in its [the] operation. [or direction of aircraft while in flight].

SECTION 2. [Sovereignty in space] Sovereignty in the space above the lands and waters of this State is declared to rest in the State, except where granted to and assumed by the United States pursuant to a constitutional grant from the people of this State.

SECTION 3. [Ownership of space] The ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the

2 This amplification of the former sentence is intended to cover the case of hydroplanes which are on the water but not being operated, and of hydroplanes which are flying so close to the surface of water as to strike vessels. The new sentence is supported by Matter of Reinhardt, 232 N. Y. 115, November, 1921. In this case, a man was injured by the propellor of a hydro-plane, which was dragging her anchor and drifting towards shore in Gravesend Bay, Brooklyn. The Court of Appeals held that the New York State Industrial Commission had no jurisdic-tion regarding compensation for the injuries sustained by the plaintiff, that he was working on a “vessel” in navigable waters, and subject to the jurisdiction of admiralty.

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surface beneath, subject to the right of flight de-scribed in Section 4.

MR. CORTHELL: Does not believe that State legislators and judges are ready for natural easement of flight; thinks it better to declare ownership in space in the land owner, and then prohibit action by the land owner against the aeronaut, except in case of actual or threatened damage.

MR. CARROLL (A. B. A. Com.): “I doubt the wisdom of enacting Section 3. This sec-tion enunciates a principle which to my mind is not based on any intelligible reasoning or analogy. If it is the law (as it probably is) it will have to be changed so far as it interferes with navigation of the air.”

SECTION 4. [Lawfulness of flight] Flight in air-craft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing [unless the landing was caused by circumstances over which the aviator had no control]. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in Section 5.

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SECTION 5. [Damage on land] The owner of every aircraft which is operated over the lands or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence3 of the person injured, or of the owner or bailee4 of the prop-erty injured. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An aeronaut [aviator] who is not the owner or lessee shall be liable only for the consequences of his own negligence.5 The injured person, or owner or bailee of the injured prop-erty, shall have a lien on the aircraft causing the injury to the extent of the damage caused by the aircraft or objects falling [or dropping] from it.6

3 The doctrine of “comparative negligence” seems to have little following outside of Georgia and Florida, 29 Cyc. 560. 4 Mr. Imlay would add after “bailee,” “lessee or agent of the owner, bailee, or lessee.” 5 Mr. Corthell would make the aeronaut also absolutely liable. 6 Mr. Imlay would require a bond of the owner or other responsible party to insure liability for damage. MR. CARROLL (A. B. A. Com.): “Excellent [referring to Sec. 5]. I see no objection to making the operator of the machine also responsible, irrespective of negligence.”

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SECTION 6. [Collision of aircraft] The liability of the owner7 of one aircraft to the owner8 of another aircraft, or to aeronauts [aviators] or passengers on either aircraft, for damage caused by collision on land or in the air, shall be determined by the rules of law applicable to torts on land, and by such regulations and customs relating to aerial navigation as may be properly applicable.9

SECTION 7. [Jurisdiction over crimes and torts] All crimes, torts and other wrongs committed by or against an aeronaut [aviator] or passenger while in flight over this State shall be governed by the laws of this State; and the question whether damage occa-sioned by or to an aircraft while in flight over this State constitutes a tort, crime or other wrong by or against the owner of such aircraft, shall be deter-mined by the laws of this State.10

SECTION 8. [Jurisdiction over contracts] All con-tractual and other legal relations entered into by aeronauts [aviators] or passengers while in flight over

7 MR. CORTHELL: Add “lessee or operator” after “owner.” 8 MR. CORTHELL: Add “or lessee” after “owner.” 9 MR. IMLAY: Final clause following comma is too vague and should be omitted. 10 MR. CORTHELL: Torts and crimes committed by or against aeronauts or passengers so near the boundary line of this State as to render it impracticable to determine the State in which the tort or crime was committed, may be made the subject of action or prosecution in this State or the adjoining State.

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this State shall have the same effect as if entered into on the land or water beneath.11

[SECTION 9. [Regulation of aviation] The power and the duty to regulate intrastate aviation within this State is vested in the ( ). He shall prepare and promulgate such regulations controlling intra-state aviation within this State as are necessary for the protection of the public and the development of aviation, including regulations

(a) for the departure, flight, landing and mark-ing of aircraft;

(b) for the control and management of air-dromes and landing places;

(c) for the carriage of passengers and freight by aircraft;

(d) for the issuance, suspension and revocation by him of licenses for aviators and aircraft;

(e) for the establishment of aerial travel routes;

(f) for the prescription of areas over which all flight shall be prohibited.

All regulations promulgated by the ( ) for the control of aviation shall be printed at least (six times in each of three newspapers) published within the State, and a copy mailed to each registered owner and

11 MR. CARROLL (A. B. A. Com.): Section 8 hardly seems necessary.

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licensed operator in the State, before such regulations shall take effect.]

Committee recommends omission of this section.

MR. CORTHELL: Is it constitutional to give administrative officer power to legislate regarding crimes and penalties?

MR. CARROLL (A. B. A. Com.): Is against State licensing and regulation.

MR. UPSON of “Aviation”: A committee on an American Aeronautical Safety Code is now preparing a complete Uniform Safety Code. The Chairman is Mr. H. M. Crane, 44 West 44th St., New York City.

[SECTION 10. [Penalty for violation of regula-tions] Any person who shall violate any regulation for the control of aviation, duly promulgated and pub-lished by the ( ) shall be liable to a fine of not more than, $( ), to be recovered by the ( ) for the use of the State.]

Committee recommends that this section be omitted.

MR. BLEWETT LEE: Doubts the constitu-tionality of delegating the power to create a crime; better impose a punishment on intra-state flight unless conducted in accordance with the regulations promulgated by the au-thority nominated in Section 9.

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[SECTION 11. [Aviator’s license] No aviator, ex-cept an aviator employed by the United States Gov-ernment, shall operate or direct, or take any part in the operation or direction, of an aircraft in intrastate flight within this State unless he shall have been licensed by this State, or by another State or by the United States. Licenses shall be issued by the ( ) upon satisfactory proof, evidenced by practical and theoretical tests, of the applicant’s ability to perform the act of operation or direction for which he is to be licensed, and upon the payment of a license fee of $( ). Such license shall be valid for one year, unless sooner suspended or revoked for cause, after a hearing, by the ( ). Any aviator who shall violate the provisions of this section shall be liable to a fine of $( ), to be recovered by the ( ) for the use of the State.]


[SECTION 12. [Aircraft license] No aircraft, ex-cept an aircraft owned or operated by the United States government, shall be operated in intrastate flight within this State unless its use shall have been licensed by this State, or by another State or by the United States. The ( ) shall inspect every aircraft presented to him for licensing and shall, if satisfied of its safety, register in a record book the facts regarding the ownership, construction and intended use of such aircraft, and issue a license to the owner thereof for its operation in this State. For such inspection, regis-tration and licensing the ( ) shall be entitled to a

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fee of $( ). Such license shall be valid for a period of one year, unless sooner suspended or revoked for cause by the ( ). Any aircraft owner or lessee who shall violate the provisions of this section shall be liable to a fine of $( ), to be recovered by the ( ) for the use of the State.]


SECTION 9. [Dangerous flying a misdemeanor] Any aeronaut [aviator] or passenger who, while in flight over a thickly inhabited area or over a public gathering within this State, shall engage in trick or acrobatic flying, or in any acrobatic feat, or shall, ex-cept while in landing or taking off, fly at such a low level as to endanger [be dangerous to] the persons on the surface beneath, or drop any object except loose water or loose sand ballast, shall be guilty of a mis-demeanor and punishable by a fine of not more than $( ), or imprisonment for not more than ( ), or both.

MR. CORTHELL: Should the right to en-join unlawful acts named in Section 13 be expressly stated?

MR. CARROLL (A. B. A. Com.): Low fly-ing is more dangerous than trick flying; the prohibition of Section 13 should be directed against flying over crowds, gatherings, cities, or thickly populated areas at such height and in such manner as to endanger persons on the surface beneath.

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SECTION 10. [Hunting from aircraft a misde-meanor] Any aeronaut [aviator] or passenger who, while in flight within this State, shall intentionally kill or attempt to kill12 any birds or animals shall be guilty of a misdemeanor and punishable by a fine of not more than $( ), or by imprisonment for not more than ( ), or both.

MR. CARROLL: (A. B. A. Com.): Section 14 is good and necessary.

SECTION 11. [Uniformity of Interpretation] This Act shall be so interpreted and construed as to effec-tuate its general purpose to make uniform the law of those States which enact it, and to harmonize, as far as possible, with Federal laws and regulations on the subject of aeronautics.13

SECTION 12. [Short title] This Act may be cited as the Uniform State Law for Aeronautics [Aviation Act].

SECTION 13. [Repeal] All Acts or parts of Acts which are inconsistent with the provisions of this Act are hereby repealed.

12 MR. CORTHELL: Suggests “shall kill or injure or attempt to kill or injure” in place of “shall intentionally kill or attempt to kill.” 13 Since Federal legislation is needed and certain to exist, it seems desirable to urge the State courts to construe the State act in the light of Federal legislation, so that the entire system of law respecting aeronautics may be harmonious, as far as possible.

App. 145

SECTION 14. [Time of taking effect] This Act shall take effect ( ).

App. 146

CONFERENCE HANDBOOK (1922) PAGES 105-108

The Conference resolved itself into a committee of the whole for the purpose of considering the report of the Committee on the Uniform Aviation Act. Mr. Terry of New York took the Chair.

The Committee rose and reported that it had considered the second tentative draft of a Uniform State Law for Aeronautics and adopted the same and recommended it to the Conference for adoption.

Mr. Young then introduced the following resolu-tion and moved its adoption:

Resolved by the National Conference of Commissioners on Uniform State Laws at its thirty-second Annual Conference, held at San Francisco, August 2-8, 1922, that the Uniform State Law for Aeronautics be and the same is hereby approved and adopted and the Act is now recommended to the legis-latures of the various states, the Territory of Alaska, the Territory of Hawaii, the District of Columbia and the Insular Possessions of the United States for enactment.

The motion was duly seconded.

Unanimous consent was granted to voting on the Act without reprinting it since but two minor amendments were adopted by the committee of the whole.

App. 147

Upon the roll call the states voted as follows:

Ayes – Arizona, California, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mis-sissippi, Missouri, Nevada, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Porto [sic] Rico, South Dakota, Utah, Vermont, Virginia, Wash-ington, West Virginia, Wisconsin, Wyoming – Total, 32.

Noes – None.

The Act was declared approved.

President MacChesney introduced President Sev-erance of the American Bar Association, a Commis-sioner from Minnesota, who spoke as follows:

It is a great privilege for me to get before this organization, of which I have been a member for such a long time, and say something agreeable. It is rather an unusual thing to be called upon to do.

It makes me think of a friend who had a very clever wife, and he said that persons were all the time saying to him, “By George, old man, that wife of yours is a clever woman.” And he said, “I am very much embarrassed because I don’t know what to answer, and I think they don’t know it all.”

It is the same way with me. When I am asked to say something agreeable to you, I feel that I should say that I do not know it all. I want to say just a word as to what we have been trying to do here this year. We have a dual capacity. It seems to me that it is of

App. 148

the greatest importance that the Committees of the American Bar Association and the Committees of this Association should be thoroughly coordinated in their work, and with that end in view I requested several Chairmen of Committees of the American Bar Associ-ation to come here with their colleagues and occupy similar positions with Commissioners, and I think that has had some effect. For instance, this bill that has just been adopted has taken some little time for a hearing, but it is very important and I think it was a notable hearing.

At a recent hearing in Washington, all of the important people in the United States who are inter-ested in aeronautics were present, and they were men who have been in the war as fliers, and there were manufacturers and bankers and financial men who backed the government and who have backed the in-dustry since the time of its creation. I remember the Chairman of the War Industries Board was present and made a statement and Mr. LaGuardia of New York, who is a past President of the Board of Alder-men in that city made a statement. He is also a flier himself. It was really a very interesting session, and although I know very little of the subject I was very much interested in sitting in at that meeting with those men who knew so much about it.

It happened to come easy and naturally to make a gentleman who had been a member of the flying corps of the United States during the war, Chairman of the Bar Association Committee, Mr. MacCracken. I do not know whether he arrived yesterday, because

App. 149

I have been out of town for a couple of days, but I understood that he was flying from Chicago to San Francisco, and I hope that he got here in time to hear this discussion this morning.

At any rate, this is only one example of the instances in which there should be closer coordination between the Bar Association and the Commissioners.

There is another thing. I think we are all mem-bers of the Bar Association, and all have certain influ-ence and there should not be a feeling growing up, as I am told there has been, that this body is something wholly separate and apart from the Bar Association. Of course, the Commissioners are appointed under state authority, and as a rule they are officials of the state that they represent, but this body was originat-ed, and having been originated by the American Bar Association, I don’t want to have the time come when our interest with that Association is merely a finan-cial one.

Of course, we do get a certain amount of money, and I do hope that it will be possible to have all the funds that are necessary to run this Conference, contributed by the states, but nevertheless I would much rather have some relation of that sort because I think it will all tend to coordinate the work of these two bodies.

Now this matter of aeronautics which has been under consideration this morning is something that must be considered by Congress and all the various

App. 150

states, and the American Bar Association’s Commit-tee is the proper body for suggesting to Congress the proper form of legislation. I have been very much interested during the year that I have been in office to find out how much Congress is beginning to rely upon Committees of the American Bar Association for advice and assistance. I have attended several meet-ings with Committees of the Bar Association, and the Committees of Congress have taken the advice in many cases of the Committees of the American Bar Association, and they have asked their opinion.

It seems to me that we can keep these bodies coordinated, so that the various state Commissioners can act in their legislatures and the Bar Association can act in federal matters in Congress. By coordinat-ing the work we can really exercise a very powerful and intelligent influence upon the legislative inter-ests of this country.

Now, as I said at the beginning, it is difficult for me to be called upon to talk to you at this time, but in the next three or four days I hope to be in a position in the parent body (if I can so call that organization) to have something more to say to all of you.

Some of the best friends I have in the world and some of my most intimate friends are members of this Conference. The friends that I have created here in this miniature parliamentary body are very dear to me, and it is a source of great happiness to know that in my retirement from office in the next few days I will still remain one of you, and hope I will continue

App. 151

to have the friendship in the future that I have had with you in the past. (Applause).

Mr. Hart (La.) filed the report of the Committee on Appointment of and Attendance by Commission-ers.

(See pages 349-352 for this report.)

App. 152

UNIFORM AERONAUTICS ACTS

WITH

ANNOTATIONS AND STATUTORY NOTES

Approved by the National Conference of Commissioners on Uniform State Laws

PAGES 157-167

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UNIFORM AERONAUTICS ACT

Table of States Wherein Act Has Been Adopted

State Laws Effective Date

Present form of act

Ariz. ........ 1929, c. 38 3-6-1929* Code Supp.1936, §§ 175Z22 to 175Z44.

Del. ......... 1923, c. 199 3-23-1923* Rev.Code 1935, §§ 5776-5786.

Ga. .......... 1933, p. 99 3-23-1933* Code 1933, 11-101 to 11-110.

Hawaii ... 1923, Act 109 4-30-1923* Rev. Laws 1935, §§ 6975-6986.

Idaho ...... 1931, c. 100 3-11-1931* Code 1932, §§ 21-101 to 21-110.

Ind. ......... 1927, c. 43 3-3-1927* Burns’ 1933, §§ 14-101 to 14-112.

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Md. ......... 1927, c. 637 4-26-1927* Code Pub.Gen.Laws Supp. 1935, Act 1-A.

Mich. ...... 1923, No. 224 5-23-1923* Comp.Laws 1920, §§ 4811-4821.

Minn. ..... 1920, c. 210 4-17-1920* Mason’s St.Supp.1936. §§ 5494-7 to 5494-21.

Mo. ......... 1920, p. 122 8-27-1920 Mo.St.Ann. §§ 13905–13915, pp. 513-545.

Mont. ...... 1920, c. 37 2-18-1920* Rev.Codes 1935, §§ 2736.1 to 2736.10.

Nev. ........ 1923, c. 66 3-5-1923* Comp.Laws §§ 275-288.

N.J. ......... 1920, c. 311 5-6-1920* Rev.St.1937, N.J.Stat.Ann. §§ [illegible] to 6:2-12.

N.C. ........ 1920, c. 199 3-16-1920 Code 1935, §§ 191(j)-191(w).

N.D. ........ 1923, c. 3 2-5-1923* Comp.Laws Supp. §§ [illegible]-[illegible].

R.I. .......... 1929, c. 1425 5-15-1929 Original act.

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S.C. ......... 1920, No. 189 3-16-1929 Code 1932, §§ 7100-7111.

S.D. ......... 1925, c. 6 2-24-1925* Comp.Laws 1929, §§ [illegible] to [illegible].

Tenn. ...... 1923, c. 30 2-16-1923* Code 1932, §§ 2716-2726.

Utah ....... 1923, c. 24 5-8-1923 Rev.St.1933, §§ 4-0-1 to 4-0-9.

Vt. ........... 1923, No. 155 3-26-1923* Pub.Laws 1933, §§ [illegible]-[illegible].

Wis. ........ 1929, c. 348 3-2-1920 St.1937, §§ 114.01-114.10.

*Date of approval.

General Statutory Notes

Arizona. The act contains additional provisions relating to the establishment of airports and to the licensing of aircraft and airmen, changes the number-ing of sections, omits section 14 and makes some changes in the sections adopted (see “Statutory Notes” to sections 5, 9, and 11). – Laws 1929, c. 38, Code Supp. 1936, §§ 175Z22 to 175Z44.

Colorado. Enacted in 1937 “The Aeronautics Act of 1937” which contained matter similar to sec-tions 2, 3, 4 and 11. The act also provided for the cre-ation of a State Commission, its powers and duties,

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enforcement of its provisions, a penalty of $500 or imprisonment for not more than six months or both; thus it resembled in some respects the Uniform Aero-nautical Regulatory Act. – Laws 1937, c. 81.

Georgia. In 1933 Georgia enacted a “Uniform Aeronautical Code,” which embodies sections 6 and 8 of the Uniform Act and parts of sections 4 and 7 thereof. – Laws. 1933, p. 99.

Hawaii. Created Aeronautical Commission and defined its powers and duties. See General Statutory Note under Uniform Aeronautical Regulatory Act. – Laws 1923, Act 109, Rev.Laws 1935, §§ 6975, 6986.

Idaho. Adopted the Uniform Aeronautics Act in 1925 but in 1931 re-enacted it with the omission of sections 9, 10, 13 and 14 and with several changes (see “Statutory Notes” to sections 1, 5, 7 and 11). – Laws 1925, c. 92; Laws 1931, c. 100, Code 1932, §§ 21-101 to 21-110.

Illinois. Enacted in 1931, amended in 1933 an “Aeronautics Act” which embodies the substance of some of the sections of the Uniform Act but is not an adoption thereof. – Laws 1931, p. 194, as amended by 1933, p. 182, Smith-Hurd Ill.St. c. 15 1/2, §§ 1-22.

Missouri. Omits sections 2, 5, 10, 12, 13 and 14 of the Uniform Act but adopts the remaining sections with minor changes (see “Statutory Notes” to sections 4 and 9). – Laws 1929, p. 122, Mo.St. Ann., pp. 543-545, §§ 13905-13915.

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Montana. Provides also for the registration and licensing of aircraft and is an adoption of the Uniform Act with modifications (see “Statutory Notes” to sections 2 and 4). – Laws 1929, c. 17, Rev. Codes 1935, §§ 2736.1 to 2736.10.

North Carolina. Omits sections 11 and 12 of the Act and adds provisions relating to registration and licenses. – Laws 1929, c. 190, Code 1935, §§ 191(j)-191(w).

Pennsylvania. Enacted in 1933 “The Aeronau-tical Code,” Article IV of which contains the substance of sections 3, 4, 6, 7 and 8. This act expressly repeals Laws 1929, p. 724, by which the Act was first adopted. – Laws 1933, p. 1001, 2 p.s. §§ 1460-1487.

Rhode Island. Repealed Laws 1928, c. 1234 by “an act concerning aeronautics” (Laws 1929, c. 1435) which adopts sections 1 to 10 of the Uniform Act verbatim, except that it places the penal provisions of sections 9 and 10 in a separate section (§ 14). It makes minor changes in later sections and adds provisions relating to licenses, registration and air traffic rules. See “Statutory Notes” to sections 9, 10, 11, 12, 13, and 14.

Wisconsin. Adopted the Uniform Act in 1929 with minor changes and omissions (see “Statutory Notes” to sections 1, 2, 4, 9 and 11). Laws 1929, c. 348, St.1937, §§ 114.01-114.10.

Wyoming. Enacted in 1931 and aeronautics act purporting to be the Uniform Act. While it contains

App. 157

two or three sections similar to those of the Uniform Act, it differs materially therefrom and cannot be said to be an adoption thereof. – Laws 1931, c. 106, Rev.St.1931, §§ 4-101 to 4-110.


Approved by the National Conference of Commis-sioners on Uniform State Laws in 1922.

Section 1. Definition of Terms. 2. Sovereignty in Space. 3. Ownership of Space. 4. Lawfulness of Flight. 5. Damage on Land. 6. Collision of Aircraft 7. Jurisdiction Over Crimes and Torts. 8. Jurisdiction Over Contracts. 9. Dangerous Flying a Misdemeanor. 10. Hunting from Aircraft a Misdemeanor, 11. Uniformity of Interpretation. 12. Short Title. 13. Repeal. 14. Time of Taking Effect

§ 1. Definition of Terms. – In this Act, “air-craft” includes balloon, airplane, hydroplane, and every other vehicle used for navigation through the air. A hydroplane, while at rest on water and while being operated on or immediately above water, shall be governed by the rules regarding water navigation; while being operated through the air otherwise than immediately above water, it shall be treated as an aircraft.

App. 158

“Aeronaut” includes aviator, pilot, balloonist, and every other person having any part in the operation of aircraft while in flight.

“Passenger” includes any person riding in an aircraft, but having no part in its operation.

Statutory Notes

Idaho. Defines “passenger” as it is defined in this section, but defines “aircraft” as “any contrivance now known or hereafter invented, used or designed for navigation of flight in the air, except a parachute or other contrivance designed for such navigation but used primarily as safety equipment,” and defines “airman” as follows: “The term ‘airman’ means any individual (including the person in command, and any pilot, mechanic or member of the crew) who en-gages in the navigation of aircraft while under way, and any individual who is in charge of the inspection, overhauling or repairing of aircraft.” – See Laws 1931, c. 100, Code 1932, § 21-101.

Wisconsin. Rewrote this section in 1937 so that it would comprehend definitions for the Uniform Aeronautical Regulatory Act. The only definition similar to these in this section is the definition of “air-craft” which “means any contrivance now known or hereafter invented, used, or designed for navigation of, or flight in, the air.” – Laws 1937, c. 381, St.1937, § 114.01.

App. 159

§ 2. Sovereignty in Space. – Sovereignty in the space above the lands and waters of this State is declared to rest in the State, except where granted to and assumed by the United States pursuant to a con-stitutional grant from the people of this State.

Statutory Notes

Colorado. Differs only in the wording of ex-ception, which reads, “except where assumed by the United States Law.”– Laws 1937, c. 81, § 6.

Hawaii. Omits from this section the clause “pursuant to a constitutional grant from the people of this state.”– Laws 1923, Act 109, Rev.Laws 1935, §§ 6975-6986.

Michigan. Omits from this section the clause “pursuant to a constitutional grant from the people of this state.” – Laws 1923, No. 224, Comp.Laws 1929, § 4812.

Montana. Contains this section but changes the excepting clause to read as follows: “except where assumed by the United States law.” – Laws 1929, c. 17, sec. 5, Rev.Codes 1935, §§ 2736.1 to 2736.-10.

Wisconsin. Omits from this section the clause “pursuant to a constitutional grant from the people of this state.” – Laws 1929, c. 348, St.1937, § 114.02.

§ 3. Ownership of Space. – The ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the

App. 160

surface beneath, subject to the right of flight de-scribed in Section 4.

§ 4. Lawfulness of Flight. – Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in Section 5.

Statutory Notes

Colorado. Omits phrase, “on the space over the land or water” from first sentence and adds at end thereof, “or in violation of the air commerce regula-tions which have been or may hereafter be, promul-gated by the Department of Commerce of the United States.” Third sentence reads, “For damages caused by a forced landing, however, the owner or lessee of the aircraft or the airman shall be liable for actual damage caused by such forced landing.” – Laws 1937, c. 81, § 8.

App. 161

Hawaii. Amended this section in 1927 to read as follows:

“§ 3894. Lawfulness of flight. Flight in air-craft over the lands and waters of the Territory is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath, or unless in violation of the rules and regulations promulgated by the Territorial Aero-nautical Commission pursuant to Section 3900. The landing of an aircraft on the lands or waters of another, without his consent is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in Section 3895.” – Laws 1927, Act 238.

Missouri. Adopts this section with the excep-tion of the last sentence relating to liability for dam-ages, which is omitted. – Laws 1929, p. 122, § 4, Mo.St.Ann. p. 543, § 1390.7.

Montana. Contains this section. but at the end of the first sentence adds the words “or in violation of the air commerce regulations which have been or may hereafter be, promulgated by the Department of Commerce of the United States,” and at the end of the section provides for liability “for actual damage caused by such forced lauding.” – Laws 1929, c. 17, § 7, Rev.Codes 1935, § 2736.7.

App. 162

Utah. Inserts the words “or damaging” after “imminently dangerous” in the first sentence of this section. – Laws 1923, c. 24, Rev.St.1933, § 4-0-4.

Wisconsin. Inserts the words “or damaging” after “imminently dangerous” in the first sentence of this section. – Laws 1929, c. 348, St.1937, § 114.04.

Notes of Decisions

Airport, landing at 2

Construction 1

Landing at airport 2

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1. Construction

This section and section 5 of this Act should be considered together. The court said, “When the two sections are considered together, as they should be, it is reasonably clear that the liability which section 5 purports to impose on the owners of aircraft, whether negligent or not, has reference only to injuries to person or property where the descent of the air craft would be a trespass upon the right of the land owner.” State, to Use of Birckhead v. Sammon, Md.1937, 189 A. 265.

2. Landing at airport

This section and section 5 of this Act do not apply to authorized landing of airplanes at airport. Said the court: “Both sections refer to flights of aircraft ‘over

App. 163

lands or waters’ of the State. By section 4 the landing of aircraft on lands or waters of another is declared to be unlawful, without his consent, except in the case of a forced landing, for which damages may be recovered as provided by section 5. The terms of the two interre-lated sections do not, in our opinion, permit the interpretation that they were intended to apply to the authorized landing of airplanes at an airport.” State, to Use of Birckhead v. Sammon, Md.1937, 189 A. 265.

§ 5. Damage on Land. – The owner of every aircraft which is operated over the lands or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the prop-erty injured. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An aeronaut who is not the owner or lessee shall be liable only for the consequences of his own negligence.

The injured person, or owner or bailee of the injured property, shall have a lien on the aircraft causing the injury to the extent of the damage caused by the aircraft or objects falling from it.

App. 164

Statutory Notes

Arizona. Replaces this section by one which reads as follows: “Section 11. Each pilot shall be re-sponsible for all damage to any person or property caused by any aircraft directed by him or under his control, which damages shall have resulted from the negligence of such pilot, either in controlling such air-craft himself or while giving instructions to another, and, if such pilot be the agent or employee of another, both he and his principal or employer shall be re-sponsible for such damage.” – Laws 1929, c. 38, § 11, Code Supp.1936, § 175Z32.

Idaho. Section reads as follows: “The owner or the operator, or either of them, of every aircraft which is operated over the lands or waters of this State shall be liable for injuries or damage to persons or property on or over the land or water beneath, caused by the ascent, descent or flight of aircraft, or the dropping or falling of any object therefrom, in accor-dance with the rules of law applicable to torts on land in this State. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be thus liable, and they may be sued jointly, or either or both of them may be sued sepa-rately. The injured person, or owner or bailee of the injured property, shall have a lien on the aircraft causing the injury to the extent of the actionable damage caused by the aircraft or objects falling from it.” – Laws 1931, c. 100, Code 1932, § 21-105.

App. 165

Maryland. Amended this section in 1937 to read as follows: “5 Damages on Land. The owner of every aircraft which is operated over the lands or waters of this State is prima facie liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent or flight of the aircraft, or the dropping or falling of any object therefrom, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured, or unless at the time of such injury the said aircraft is being used without the consent, express or implied, of the owner. If the aircraft is leased at the time of injury to person or property both owner and lessee shall be prima facie liable, and they may be sued jointly, or either or both of them may be sued separately. The presumption of liability on the part of the owner, or of the owner and lessee, as the case may be, may be rebutted by proof that the injury was not caused by negligence on the part of such owner or lessee, or of any person operat-ing such aircraft with the permission of the owner or lessee, or of any person maintaining or repairing such aircraft with the permission of the owner or lessee. An aeronaut who is not the owner or lessee shall be liable only for the consequences of his own negligence. The injured person, or owner or bailee of the injured property, shall have a lien on the aircraft causing the injury to the extent of the damage caused by the aircraft or objects falling from it, provided said in-jured person, or owner or bailee of the injured prop-erty registers and records in the office of the State Aviation Commission a sworn notice of said lien

App. 166

within thirty days from said injury, setting forth in detail the injury or damage caused. Every such notice of a lien not so recorded shall be void against sub-sequent purchasers and mortgagees in good faith, without notice, which lien shall be terminated upon rebuttal of the prima facie liability by the owner or lessee of the aircraft.” – Laws 1937, c. 528.

Utah. Changes “injuries to persons or property” in the first sentence of this section to “injuries or damage to persons or property.” That act also changes the last sentence to read as follows: “The injured per-son, or owner or bailee of the damaged property, shall have a lien on the aircraft causing the injury or dam-age to the extent of the injury or damage caused by the aircraft or objects falling from it.” – Laws 1923, c. 24, Rev.St.1933, § 4-0-5.

Notes of Decisions

Common law 2

Construction 1

Injuries 4

Landing at airport 3

-----------------------------------------------------------------------

1. Construction

This section and section 4 of this Act should be considered together. The court said, “When the two sections are considered together, as they should be, it is reasonably clear that the liability which section 5

App. 167

purports to impose on the owners of aircraft, whether negligent or not, has reference only to injuries to persons or property where the descent of the aircraft would be a trespass upon the rights of the land owner.” State, to Use of Birckhead v. Sammon, Md.1937, 189 A. 265.

2. Common law

Question of airplane owner’s liability for death of child killed at airport was determinable in accordance with common law principles affecting responsibility for negligence. – State, to Use of Birckhead v. Sammon, Md.1937, 189 A. 265.

3. Landing at airport

This section and section 4 of this act do not apply to authorized landing of airplanes at airport. Said the court: “Both sections refer to flights of aircraft ‘over lands or waters’ of the State. By section 4 the landing of aircraft on lands or waters of another is declared to be unlawful, without his consent, except in the case of a forced landing, for which damages may be recovered as provided by section 5. The terms of the two interre-lated sections do not, in our opinion, permit the interpretation that they were intended to apply to the authorized landing of airplanes at an airport.” State, to Use of Birckhead, v. Sammon, Md.1937, 189 A. 265.

App. 168

4. Injuries

This section refers only to injuries to persons or property where descent of aircraft would be trespass on rights of landowner. State, to Use of Birckhead, v. Sammon, Md.1937, 189 A. 205.

§ 6. Collision of Aircraft. – The liability of the owner of one aircraft to the owner of another aircraft, or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air, shall be determined by the rules of law applicable to torts on land.

Statutory Notes

Tennessee. By obvious error substitutes “ports” for “torts” in this section. Laws 1923, c. 30, Code 1932, § 2722.

Notes of Decisions

1. Common law

This section is declaratory of common law rule. “The rule of the common law is that every person shall use ordinary care not to injure another. Ordi-nary care is held to be such care as the great mass of mankind would use under the same or similar cir-cumstances, or such care as the ordinarily prudent person would use under the same or similar circum-stances.” Greunke v. North American Airways Co., 1930, 230 N.W. 618, 201 Wis. 565, 69 A.L.R. 295.

App. 169

§ 7. Jurisdiction Over Crimes and Torts. – All crimes, torts and other wrongs committed by or against an aeronaut or passenger while in flight over this State shall be governed by the laws of this State; and the question whether damage occasioned by or to an aircraft while in flight over this State constitutes a tort, crime or other wrong by or against the owner of such aircraft, shall be determined by the laws of this State.

Statutory Notes

Idaho. Adds to the end of this section the words “so far as not governed by Federal Laws at any time.” Laws 1931 c. 100, Code 1932, § 21-107.

Notes of Decisions

1. Negligence

Where passengers were riding in airplane equipped with dual controls, so that control stick stuck up between them in 31-inch cockpit in which they were riding, airplane owner held not liable for death of passengers under res ipsa loquitur doctrine, since there was no more probability that accident was caused by pilot’s negligence than by passengers’ negli-gence. Budgett v. Soo Sky Ways, Inc., S.D.1936, 266 N.W. 253 (no reference to Uniform Act).

§ 8. Jurisdiction Over Contracts. All con-tractual and other legal relations entered into by aer-onauts or passengers while in flight over this State

App. 170

shall have the same effect as if entered into on the land or water beneath.

§ 9. Dangerous Flying a Misdemeanor. – Any aeronaut or passenger who, while in flight over a thickly inhabited area or over a public gathering within this State, shall engage in trick or acrobatic flying, or in any acrobatic feat, or shall, except while in landing or taking off, fly at such a low level as to endanger the persons on the surface beneath, or drop any object except loose water or loose sand ballast, shall be guilty of a misdemeanor and punishable by a fine of not more than $(- - - - - -), or imprisonment for not more than (- - - - - -), or both.

Statutory Notes

The penalties imposed in the Uniform Aero-nautics Acts of the various adopting jurisdictions are as follows:

Arizona: $500 fine – 1 year’s imprisonment

Delaware: $500 fine – 1 year’s imprisonment

Hawaii: $1000 fine – 1 year’s imprisonment

Indiana: $500 fine – 1 year’s imprisonment.

Maryland: $1000 fine – 6 months’ imprison-ment.

Michigan: $50 fine – 90 days’ imprisonment

Nevada: $500 fine – 6 months’ imprisonment (in county jail).

App. 171

New Jersey: $1000 fine – 1 year’s imprison-ment.

North Carolina: $500 – 1 year’s imprison-ment.

North Dakota: $500 fine – 1 year’s imprison-ment

Rhode Island: $500 fine – 1 year’s imprison-ment

South Carolina: $100 fine – 30 days’ impris-onment.

South Dakota: $1000 fine – 6 months’ impris-onment

Tennessee: $500 fine – 1 year’s imprisonment.

Utah: $300 fine – 6 months’ imprisonment

Vermont: $100 fine – 1 year’s imprisonment

Wisconsin: $10 to $100 first offense; $100 to $500 thereafter – 6 months’ imprisonment

Arizona. Adds “loose sheets of paper” to the ar-ticles which may be dropped without criminal liabil-ity therefor. Laws 1929, c. 38, § 15. Code Supp.1936, § 175Z36.

Hawaii. Adds “paper handbills” to the articles which may be dropped by an aeronaut or passenger without criminal liability therefor. Laws 1923, Act 109 – Rev.Laws 1935, §§ 6975-6986.

Indiana. Adds “personally directed messages written on paper, or United States mail or cut flowers” to the articles which may be dropped by an aeronaut

App. 172

or passenger without criminal liability therefor. Laws 1927, c. 43. Burns 1933, § 14-109.

Michigan. Passed in 1926 a special act with respect to dangerous flying by aeroplanes. The act provides as follows:

“Section 1. No person shall operate an aero-plane or flying machine over open air assemblies of people at a height of less than fifteen hundred feet from the ground: Provided, That this act shall not apply to groups assembled for the purpose of witness-ing aerial exhibitions and stunt flying, nor to groups assembled at a flying field.

“Section 2. Any person violating the provisions of this act shall, upon conviction, be deemed guilty of a misdemeanor and be punished by a fine of not less than ten nor more than one hundred dollars, or by imprisonment not to exceed ninety days or by both such fine and imprisonment in the discretion of the magistrate.” Laws 1926, No. 9, Comp.Laws 1929, §§ 4822, 4823.

Minnesota. Omits the penal provision follow-ing the word “misdemeanor.” Laws 1929, c. 210, § 9. Mason’s St.Supp.1936, 5494-15.

Missouri. Adopts this section verbatim, except that the word “loose” before “water” and the penal provision following the word “misdemeanor” are omitted. Laws 1929, p. 122, § 9. Mo.St.Ann. p. 544, § 13911.

App. 173

Rhode Island. Omits from this section the penal provision after the word “misdemeanor,” but contains an additional section (§ 14) prescribing pen-alties for violation of any provision of sections 9 to 13 inclusive. Laws 1929, c. 1435.

Utah. Adds “loose sheets of paper” to the arti-cles which may be dropped without criminal liability therefor. Laws 923, c. 24. Rev.St.1933 § 4-0-5.

Wisconsin. Adds the following after the word “misdemeanor” in this section: “and upon conviction thereof shall be punished for the first offense by a fine of not less than ten dollars nor more than one hundred dollars, and for a second or subsequent offense by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.” Laws 1929, c. 348. St. 1937, § 114.09.

§ 10. Hunting from Aircraft a Misdemean-or. – Any aeronaut or passenger who, while in flight within this State, shall intentionally kill or attempt to kill any birds or animals shall be guilty of a misdemeanor and punishable by a fine of not more than $(--------), or by imprisonment for not more than (--------), or both.

App. 174

Statutory Notes

The penalties imposed in the Uniform Aero-nautics Acts of the various adopting jurisdictions are as follows:

Arizona: $100 fine – 30 days’ imprisonment.

Delaware: $100 fine – 6 months’ imprisonment

Hawaii: $1000 fine – 1 year’s imprisonment

Indiana: $100 fine – 6 months’ imprisonment

Maryland: $1000 fine – 6 months’ imprison-ment

Michigan: $25 fine – 30 days’ imprisonment

Nevada: $500 fine – 6 months’ imprisonment (in county jail).

New Jersey: $100 fine – 3 months’ imprison-ment

North Carolina: $50 fine – 30 days’ imprison-ment

North Dakota: $100 fine – 30 days’ imprison-ment

Rhode Island: $500 fine – 1 year’s imprison-ment

South Carolina: $100 fine – 30 days’ impris-onment

South Dakota: $500 fine – 3 months’ impris-onment

Tennessee: $100 fine – 90 days’ imprisonment

Utah: $300 fine – 6 months’ imprisonment

App. 175

Vermont: $50 fine – 6 months’ imprisonment

Wisconsin: $100 fine – 90 days’ imprisonment

Minnesota. Amended this section in 1933 to read as follows: “Any aeronaut or passenger who, while in flight, in an airplane, within this state, shall intentionally kill or attempt to kill any birds or animals excepting those on which the state pays a bounty, or uses any airplane for the purpose of con-centrating, driving, rallying or stirring up migratory water-fowl, shall be guilty of a misdemeanor.” Laws 1933, c. 314, Mason’s St.Supp.1936, § 5494-17.

North Dakota. Amended this section in 1929 by appending the following: “Provided, that wolves, coyotes, Canadian lynx or bobcats may, with the per-mission of the game and fish commission of the State of North Dakota, be hunted from aeroplanes within this state. Such hunting or shooting shall be done under the supervision of the game and fish commis-sion.” Laws 1929, c. 133.

Rhode Island. Makes this section a part of section 9, omitting the penal provision after the word “misdemeanor,” and substitutes a section 10 relating to the licensing and registering of aircraft. Laws 1929, c. 1435, §§ 9, 10.

South Dakota. Amended this section in 1929 to read as follows: “Any aeronaut or passenger who, while in flight within this State, shall intentionally kill or attempt to kill, or shall use an air plane for the purpose of hunting, taking, concentrating, driving, rallying, or stirring up game birds or game animals,

App. 176

shall be guilty of a misdemeanor and punishable by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment for not more than three months, or both.” Laws 1929, c. 135, Comp.Laws 1929, § 8666-U.

§ 11. Uniformity of Interpretation. – This Act shall be so interpreted and construed as to effec-tuate its general purpose to make uniform the law of those States which enact it, and to harmonize, as far as possible, with Federal laws and regulations on the subject of aeronautics.

Statutory Notes

Arizona. Appends to this section the following provision: “It shall not be interpreted or construed to apply in any manner to aircraft owned and operat-ed by the Federal government.” Laws 1929, c. 38, § 20, Code Supp.1936, §§ 175Z22 to 175Z44.

Colorado. Act reads “ * * * to effect its general purpose and to make uniform * * * .” Laws 1937, c. 81, § 13.

Hawaii. Substitutes “states and territories” for “states” in this section and changes “state” to “terri-tory” wherever the former word is used in the act. Laws 1923, Act 109, Rev.Laws 1935, §§ 6975-6986.

App. 177

Idaho. Substitutes the words “United States Air Commerce Act of 1926, the regulations there-under and other Federal Laws and regulations” for the words “Federal laws and regulations.” Laws 1931, c. 100, Code 1932, § 21-109.

Michigan. Omits this section. Laws 1923, No. 224, Comp.Laws 1929, § 4811.

Nevada. Adds to this section the following pro-vision: “It shall not be interpreted or construed to apply in any manner to aircraft owned and operated by the Federal Government” Laws 1923, c. 66, Comp.Laws § 285.

Rhode Island. Omits this provision and in its stead has a section 11 providing for the licensing of aeronauts. Laws 1929, c. 1435, § 11.

Wisconsin. Adopts the first 10 sections of the Uniform Act as part of a general law relating to aeronautics and air craft but omits this section.

§ 12. Short Title. – This act may be cited as the Uniform State Law for Aeronautics.

Statutory Notes

Michigan. Omits this section. Laws 1923, No. 224, Comp.Laws 1929, § 4811.

Rhode Island. Replaces this section by one relating to license certificates. Laws 1929, c. 1435, § 12.

App. 178

§ 13. Repeal. – All Acts or parts of Acts which are inconsistent with the provisions of this Act are hereby repealed.

Statutory Notes

Hawaii. Repeals “Act 14 of the Session Laws of 1915, as amended by Act 107 of the Session Laws of 1917, and all other acts or parts of acts which are in-consistent with the provisions of the Act.” Laws 1923, Act 109, Rev.Laws 1935, §§ 6975-6986.

Rhode Island. Replaces this section by one relating to air traffic rules and in section 15 provides for the repeal of all inconsistent acts or parts of acts. Laws 1929, c. 1435, §§ 13 and 15.

§ 14. Time of Taking Effect. – This Act shall take effect (--------).

Statutory Notes

New Jersey. Replaces this section by one re-lating to partial unconstitutionality, and in section 15 provides that the Act shall take effect immediately. Laws 1929, c. 311, §§ 14, 15.

Rhode Island. Replaces this section by general penal provision and in section 15 provides for the repeal of chapter 1234 of the Public Laws, 1928, and all inconsistent acts or parts of acts and prescribes the time when the act shall take effect. Laws 1929, c. 1435, §§ 14 and 15.

App. 179


Table of States Wherein Act Was Adopted


Present form of act

Arizona ...... 1929, c. 38 3-6-1929* A.C.A.1939, §§ 48-101 to 48-122.

Delaware ... 1923, c. 199 3-23-1923* Rev.Code 1935, §§ 5776-5736.

Georgia ...... 1933, p. 99 3-23-1933* Ga.Code Ann. §§ 11-101 to 11-110.

Hawaii ....... 1923, Act 109 4-30-1923* Rev.Laws 1945, §§ 4921-4933.

Idaho .......... 1931, c. 100 3-11-1931* L.C. §§ 21-201 to 21-210.

Indiana ...... 1927, c. 43 3-3-1927* Burns’ Ann.Stats., §§ 14-101 to 14-112.

Maryland .. 1927, c. 637 4-26-1927* Code 1939, Art. 1-A.

Minnesota . 1943, c. 653 4-24-1943* M.S.A. §§ 360.012-360.014, 360.076.

Missouri..... Laws 1933

p. 1001 5-25-1933 Mo. R. S. A. §§ 15106-15116.

App. 180

Montana .... 1929, c. 17 2-18-1929* Rev.Codes 1935, §§ 2736.1 to 2736.10.

Nevada ...... 1923, c. 66 3-5-1923* N.C.L. 1929, §§ 275-288.

New Jersey 1929, c. 311 5-6-1929* N.J.S.A., 6:2-1 to 6:2-12.

North Carolina .....

1929, c. 190 3-16-1929 G.S. §§ 63-10 to 63-23.

North Dakota .......

1923, c. 1 2-5-1923* R.C.1943, 2-0301 to 2-0310.

Pennsyl-vania .......... 1929, p. 122 8-27-1929

2 P. S. §§ 1460-1487.

South Carolina .....

1929, No. 189 3-16-1929 Code 1942, §§ 7100-7111.

South Dakota .......

1925, c. 6 2-24-1925* SDC 2.0301 to 2.0309.

Tennessee.. 1923, c. 30 2-16-1923* Williams’ Code §§ 2716-2726.

Utah ........... 1923, c. 24 5-8-1923 U.C.A.1943, 4-0-1 to 4-0-9.

Vermont .... 1923, No. 155 3-26-1923* V.S. §§ 5299-5309.

Wisconsin .. 1929, c. 348 3-2-1929 St.1947, §§ 114.01-114.10.

*Date of approval.

App. 181

ACT WITHDRAWN

The Uniform Aeronautics Act was withdrawn from the active list of Uniform Acts recommended for adoption by the states, at the National Conference of Commissioners on Uniform State Laws in August 1943. See Handbook of the National Conference, 1943, p. 66.

UNIFORM AERONAUTICAL REGULATORY ACT



Present form of act

Montana .... 1945, c. 152 3-1-45 South Carolina .....

1935, c. 317 5-21-1935 Code 1942, § 7112.

Utah ........... 1937, No. 10 3-22-1937 U.C.A.1943, 4-0-19 to 4-0-52.

Wisconsin .. 1937, c. 381 7-14-1937 St.1947, §§ 114.01, 114.05, 114.16, 114.-18-114.25, 114.27, 114.28.

*Date of approval

App. 182

ACT WITHDRAWN

The Uniform Aeronautical Regulatory Act was withdrawn from the active list of Uniform Acts rec-ommended for adoption by the states, at the National Conference of Commissioners on Uniform State Laws in August 1943. See Handbook of the National Con-ference, 1943, p. 66.

UNIFORM AIR LICENSING ACT

Revised Table of States Wherein Act Was Adopted


Present form of act

Alaska ........ 1929, c. 75 1-1-1930 Comp.Laws 1933, §§ 501-517.

Louisiana .. 1932, No. 97 7-7-1932* Dart’s Gen.St.1932, arts. 11.1-11.8.

Maine ......... 1929, c. 265 4-9-1929* R.S.1930, ch. 30.

Maryland .. 1929, c. 318 1-1-1929 Code 1939, art. 1A, §§ 12-23.

Minnesota . 1929, c. 290 11-1-1929 M.S.A. § 360.012 et seq.

North Dakota .......

1929, c. 85 3-8-1929 R.C.1943, 2-0101 to 2-0108.

App. 183

Tennessee.. 1931, c. 73 7-1-1931 Williams’ Code, §§ 2726(1)-2726(10).

Vermont .... 1931, No. 90 3-30-1931 V.S. §§ 5299-5309.

*Date of approval

ACT WITHDRAWN

The Uniform Air Licensing Act was withdrawn from the active list of Uniform Acts recommended for adoption by the states, at the National Conference of Commissioners on Uniform State Laws in August 1943. See Handbook of the National Conference, 1943, p. 66.

UNIFORM AIRPORTS ACT



Present form of act

Florida ....... 1937, c. 17708 5-24-1937 F.S.A. §§ 149.01-149.15.

Georgia ...... 1933, p. 102 3-5-1933 Ga.Code Ann. §§ 11-201 to 11-209.

South Carolina .....

1937, p. 466 5-10-1937 Code 1942, §§ 7112-31 to 7112-42.

App. 184

Utah ........... 1937, c. 9 3-22-1937 U.C.A.1943, 4-0-53 to 4-0-87.

*Date of approval

ACT WITHDRAWN

The Uniform Airports Act was withdrawn from the active list of Uniform Acts recommended for adop-tion by the states, at the National Conference of Com-missioners on Uniform State Laws in August 1943. See Handbook of the National Conference, 1943, p. 66.

App. 185

CONFERENCE HAND BOOK (1941) PAGES 114-123

PRESIDENT SCHNADER: The next item of business is the report of the Special Committee on Uniform Aeronautical Code. Mr. Barton!

MR. BARTON: Mr. President and Gentlemen: Before the Chairman of the Committee has a chance to say anything, I should like to have the pleasure of presenting to you Mr. Ryan, a member of the Civil Aeronautics Board, who is sitting at the front table. He will have something to say to you later on. I also wish to introduce Mr. Sweeney of the Civil Aero-nautics Board, who is also here.

You have received a report of this Committee on Uniform Aeronautical Code. (For Report, see page 186, infra.) The Report states that it was drawn without an opportunity for the members of the Com-mittee to meet and consider a voluminous and com-prehensive report prepared by the Civil Aeronautics Board on the subject of proposed aviation liability legislation.

Yesterday and today we have been fortunate in being able to confer with members and representa-tives of the Civil Aeronautics Board.

I think it would be helpful to all members of the Conference – and the Committee also believes it would be – if, as Chairman of this Special Committee on Uniform Aeronautical Code, I outline to you the part that the Conference has taken to date in the preparation of various laws dealing with aeronautics.

App. 186

In 1922 the Conference promulgated and adopted a Uniform State Act for Aeronautics, which was adopted in twenty-two states and which served an excellent purpose for that earlier era in the develop-ment of aviation. Matters progressed so fast that that Act was withdrawn, and, in 1930 the Conference adopted the Uniform Air License Act, which was adopted by five states.

Then the Conference began the preparation of a Uniform Aeronautical Code. The first Act of that Code was a Uniform Airport Zoning Act, adopted in 1935 and subsequently adopted by two states. The same year the Conference approved a Uniform Aeronautical Regulatory Act which was adopted by two states. In 1938 the Conference approved three Acts which completed the Code: the first Act on Uniform Aviation Liability, the second on Uniform Air Flight, and the third on Uniform Air Jurisdiction.

In 1938, I think it was, Congress made provision for the Civil Aeronautics Board. As a result of the promulgation of these last three Acts completing the Code, with their far-reaching provisions respecting liability in case of air accidents and other things, the Board embarked – and I say this advisedly – on a study of the whole question of aviation liability legislation. The Executive Committee of the Confer-ence, by reason of that study and realizing that the Board had facilities and means to study the question so thoroughly – facilities and means not possessed by Mr. Schnader’s committee, because it was during his chairmanship or this committee that these Acts were

App. 187

drafted – withheld these three Acts and the other two Acts which had already been promulgated and ap-proved by the American Bar Association, pending further study and pending the release of this report.

This report was released on August 1st, but it is dated June 1st. It was prepared by Mr. Edwin C. Sweeney, who is here today and who has been pre-sented to the Conference. He also prepared a sum-mary of the report, a very valuable document, which has been considered by the Committee. The Commit-tee was in conference with Mr. Sweeney and Mr. Ryan all yesterday afternoon and all morning.

We have prepared, as a result of those confer-ences, certain additional recommendations, which in due time we desire to present to this Conference for action.

But we believe it would be very helpful to the members of the Conference in considering our rec-ommendations if they had an opportunity to hear from Mr. Ryan. Mr. Ryan has had a very distin-guished governmental service record. He is a resident of Indiana, a lawyer, and he is at present, and has been for some years past, a member of the Civil Aeronautics Board.

It gives me a great deal of pleasure to again present and ask to speak to you at length, or as he will, Mr. Oswald Ryan of the Civil Aeronautics Board.

MR. RYAN: Mr. President and Gentlemen of the Conference: I had not anticipated being called upon to

App. 188

speak to the Conference but came here for the pur-pose of meeting with the Aeronautical Code Commit-tee of your Conference, at the invitation of that Committee, in connection with the liability legislation and also the matter of state and federal regulation of aeronautics, which is also a subject of interest to that Committee and the Conference.

I want to take this opportunity to express the appreciation of the Civil Aeronautics Board for the fine cooperation which we have received from the Aeronautical Code Committee of this Conference.

As has already been pointed out by Mr. Barton, when the Civil Aeronautics Board, then called the Civil Aeronautics Authority, three years ago, upon its installation, turned to the subject of aviation liability, it did so with the information that the matter of a state liability act was already in the hands of the Aeronautical Code Committee of this Conference and was in all probability about to be submitted to the legislatures of the various states. When we took a look at that question we very quickly discovered that the whole subject matter was one of great interest to the Civil Aeronautics Board in the administration of the new policy which had been developed and prom-ulgated by the Conference.

Congress, you will remember, in the Civil Aero-nautics Act of 1939, that year had entirely revolution-ized the federal attitude towards the whole subject of regulation. That was just before Munich, but the forces which were gathering in Europe were obvious

App. 189

and known to the government at Washington, and it was felt necessary that there should be built up under federal guidance and aid in this country, an air trans-portation system of the quality that would be ade-quate to the purposes not only of the postal service, to which-the federal policy had been confined thereto-fore, but should also be adequate to the needs of our domestic and our foreign commerce and to the needs of our national defense.

As you know, there was a comprehensive system of economic and safety regulation provided in that statute, analogous in a large way to that regulatory policy which had been delegated by the Congress to the Interstate Commerce Commission with respect to the railroads and motor carriers.

We thought we saw that this subject would vitally affect our capacity and the efficacy of the administration of the new national policy and we met with the members of your Aeronautical Code Com-mittee – I think originally in General Schnader’s office in the City of Philadelphia. We presented to your Committee the intention of the Civil Aeronautics Board to make a comprehensive survey of the whole subject matter and to offer conclusions and recom-mendations as to the appropriate course to follow. We asked the Committee to consider that in determining its plans.

Your Committee, in a fine spirit- of cooperation, agreed with us that the proposal, the then current proposal, to submit to the legislatures of the states

App. 190

the product of the work of the Aeronautical Code Committee of this Conference was very intimately tied up in national importance with the new national policy, and offered very kindly to defer action until the Board could conduct this national survey.

Let me say that they have been long suffering in waiting upon the Board in that matter. Not long after, you will remember, the conditions which now have become acute gathered over the world and we found ourselves at Washington with our hands full, trying to regulate airlines in every state and air transporta-tion in every state of the American union, in every state in Central and South America, in Alaska, in China, across the Atlantic, in the South Seas, in Australia, in Asia, across the Pacific, and practically all over the world where the great development of American flying air transportation had reached. As a result, our study has been greatly delayed, but the Committee from time to time deferred its activity and its decision upon the question until we could make our report.

The staff report has just been submitted to the Civil Aeronautics Board, and it is the report to which Mr. Barton referred in his remarks a few minutes ago. It is not yet the report of the Civil Aeronautics Board. We set up a staff under the supervision of Mr. Sweeney, who has carried the burden of the work – and the report is very largely his product, a staff charged with the duty of making this study in coop-eration with all the sources of the nation that were

App. 191

willing to give cooperation and then presenting the results with recommendations to the Board.

The Board then announced that it would receive the views of all interested parties and groups in the United States and has set a deadline, a tentative deadline, about the fifteenth of October for receiving representations and views and briefs upon this sub-ject. I might add that if your Committee on Uniform Aeronautical Code of this Conference should desire some further time in the matter, I am sure that every effort will be made by the Civil Aeronautics Board to grant any additional time desired.

That is perhaps a long way of saying to you that we appreciate what you have done in assisting us in this very important work, and I should say that it has been one of the chief aids to the staff of the Civil Aeronautics Board up to date in this very important study.

The Board, as I say, has not yet had this case submitted to it. It will treat it judiciously when it is submitted and will give full and careful consideration to the views of your organizations and every group in the country.

The other matter that was called to my attention this morning, which I think will interest you, was the matter of the respective field of federal and state regulatory jurisdiction outside of the question of private law, the question of aviation liability. That has been a controversial question, of course, for some years past, and I think there have been developed

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from time to time different proposed state regulatory acts by this group, by the Conference of Commission-ers on Uniform State Laws.

I remember that Justice Holmes in a notable case in which the question was before the high court as to the extent of the powers of the states under the Tenth Amendment, made this significant statement: “In deciding, we must ask ourselves what this nation has become in order to decide what that amendment has reserved.” I know of no more statesmanlike approach to the problem of the proper sphere of federal juris-diction than that indicated in the statement of a great justice of our highest court.

The Civil Aeronautics Board when it received the great body of civil air regulations from the Depart-ment of Commerce, which was the agency that pre-ceded the establishment of this present agency, found that those regulations had been developed around the concept of an interstate movement of interstate air commerce and the regulations had been confined and the whole theory of the regulations limited by that. concept of interstate commerce.

The Civil Aeronautics Act of 1938, which was our mandate to broaden that jurisdiction, I think, set it at the outermost boundaries of the congressional juris-diction over commerce with this nation and foreign nations, for it declared – I am speaking of the safety regulatory power of the Board, not of the economic power – that the federal agency should have jurisdic-tion not only of all interstate commerce on the federal

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airways and off the federal airways, but also it should have jurisdiction over all navigation that directly affected such interstate air commerce and over all navigation off the airways that might endanger such interstate air commerce.

It seems to me that the Congress in that broad grant of power has fixed company termini within the limits of the congressional power under the Constitu-tion. The Civil Aeronautics Board, however, had not asserted up to this time that extent of the federal power. It has waited until it could be sure that the jurisdictional facts were clearly there before it under-took to revise the Civil Aeronautics Board’s regula-tions to extend this federal power completely over the subject matter.

Came this present situation which arose out of the European war, and – to make a long story short, recently there was appointed an interdepartmental Traffic Investigating Committee to investigate air-craft, at the suggestion of the White House. That committee held hearings all over the country, because it had heard about congestion in the air space of the nation due to this national emergency. It presented its report in which it said that there was very serious situation existing in the nation.

The Civil Aeronautics Board then considered whether or not it was its duty, under the Act which it administered, to consider whether the limit extent of every federal regulation should now be merged into a larger regulation which would require every aircraft

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and every pilot in the United States first to obtain a license under the Civil Aeronautics Act before being permitted to fly in the air space of the nation.

Following our practice – and it has been our practice from the beginning, gentlemen, although the administrative law of the national government thus far does not require it as the Walter Logan Bill has not yet passed – but it has been the practice of this administrative agency never to issue a regulation affecting the aeronautical industry, or affecting the interest of the nation, without first giving all inter-ested parties an opportunity to be heard in a public meeting or by brief, or both, upon the proposal. So when we formulated this tentative regulation to put all of the air space under federal control in so far as control of pilots and air crafts were involved, we set the matter down for public hearing, and the day before yesterday there appeared before us representa-tives of other departments of this government, par-ticularly War and Navy, and representatives of interested groups throughout the nation, and they presented their views upon the subject.

It may interest you to know that there was not a single discordant note in that public hearing. So far as that hearing is concerned, the Civil Aeronautics Board would have the right to assume that everybody interested in it in the United States was in favor of this broad assertion of the federal power which had been delegated by the Congress to this Board.

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We knew, however, that there would be a great many people who would not be able to come to Wash-ington, so we gave a further period of two weeks following that hearing of the day before yesterday, during which any group of the country can present a brief and present its written views upon this im-portant regulation.

Why this unusual step – why assert the power even though it is in the federal statute? Well, when we took over aviation two years ago, there were about 11,000 aircraft, civil aircraft, flying in the United States. There are now more than twice that many, civil aircraft alone, flying in the air space of this-nation. When we took over there were something like 21,000 certified civilian pilots in the United States. Today there are more than 100,000 civilian pilots in this nation, very largely as a result of the nation’s wide civilian pilot training program of the Civil Aeronautics Authority, which began two and a half to three years ago. We find the airways of the nation revealing a state of congestion without parallel in their history. We find off-the-airways air navigation that has no parallel in the life of transportation in this country.

The Civil Aeronautics Board very recently adopt-ed a regulation permitting off-the-airways navigation by the airlines of the United States by means of the directional finder under conditions of contact daylight flying. That, in effect, has enlarged and filled in the vacant spaces in the map of air lanes of the United States.

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To make a long story short, the evidence already before us indicates that no aircraft, no pilot, can fly anywhere in the United States today without greatly endangering the interstate air commerce, which was the special concern of the Congress, and without endangering the great military activity which is occurring throughout the United States. Remember that as you fly now through the air space of this country you are in a state of traffic made up not only of all the enlarged air transportation activities of the nation, not only of all of these private fliers, but also of these many ferry pilots from England that are going back and forth across this continent on their way to the British Isles or on their way to the interior of Africa and the Near East.

Facing that jurisdictional fact, we feel that we have a duty to consider the adoption of a regulation which will subject all aircraft and all airmen in the United States, but before we make the final decision we are going to hear from every interest – at least furnish them the opportunity to be heard – in the nation that has anything to offer us upon this subject.

Finally, let me call your attention to the fact that this bespeaks a tremendous development in this new form of transportation. Remember that we have here an infant industry, we have here a development that has no parallel in the transportation history of the world. It has been less than four decades since those two young men from Ohio caused the first heavier-than-air aircraft to leave the ground on the sand dunes in Kittyhawk in North Carolina, and during

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that period we have seen an ever-enlarging air map, beginning only thirteen or fourteen years ago when a small single-engine ship took oil from the so-called airport at Newark, which had just been reclaimed from the New Jersey marshes, and pointed its nose toward the Pacific Coast. Today that air transporta-tion system has developed into this vast network that extends from the Atlantic to the Pacific and from the Great Lakes to the Gulf of Mexico. Over that network the airlines of the United States fly every day, more than twice as many miles as do the airlines of all the other great nations of the world, and that includes Great Britain, France, Germany, Italy and the Neth-erlands – the other great aeronautical nations.

In comfort, speed and safety, the airlines of the United States have attained a position ahead of any other commercial transportation in the world.

During that same period of thirteen years, the pioneers of air transportation, remember, have linked this nation with Cuba first, have linked the United States with every country in Central and South America, with China, across the Pacific, with New Zealand in the South Seas.

We are about to have before us an application to link the United States with Australia. Just a few weeks ago we established a new line from Manila to Singapore.

We have linked the United States with Alaska, with the West Indies. We have finally conquered the last unconquered ocean, the Atlantic, and have regularly

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scheduled transportation to the British Isles, which necessarily has since been shifted to Lisbon and Portugal.

The other day we authorized a new transporta-tion system connecting the United States with the west coast of Africa, and from there connecting, with a domestic transportation system, with the interior of Africa, extending into Khartoum and extending into the Near East.

I give you that picture because it shows how intimately connected with the nation’s life and devel-opment, international influence and welfare and international security is every subject of civil aviation in this country.

The problem of aviation liability is one of them. This problem of the respective spheres of state and federal jurisdiction with respect to safety regulation is another. This question of economic regulation and what the sphere of the federal government should be and what that of the state should be is still another.

I want to close by thanking you again for your aid in helping us to do the job which the Congress of the United States gave us to do.

PRESIDENT SCHNADER: Thank you, Mr. Ryan.

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REPORT OF SPECIAL COMMITTEE ON -

UNIFORM AERONAUTICAL CODE

To the National Conference of Commissioners on Uniform State Laws:

Your Special Committee on Uniform Aeronautical Code respectfully begs leave to report as follows:

The Committee has been marking time during the past year, pending the completion and release, as previously reported, of a study by the Federal Civil Aeronautics Board of the subject matter of the three Uniform Acts adopted at the Cleveland meeting in 1938. A summary of the report, and subsequently the report itself, were released to members of this Com-mittee and others about July 1st. The report embrac-es 428 pages, accompanied by 31 detailed exhibits. The summary embraces 97 pages. The report is a most complete study of the whole subject of aviation liability legislation. No summary of it in this report is possible. For those who are interested in the study, the Committee will be glad to undertake to secure copies of the summary or the report itself.

Because of the delay in releasing the report, the Committee has not been able to meet, but the mem-bers of the Committee have separately examined the summary and report. These documents largely con-firm the conclusions reached by the Special Commit-tee of the Conference on Uniform Aeronautical Code embodied in the Code, with the exception that the report indicates that Federal legislation on certain of the subject matter covered by the Code is preferable

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to state legislation. The report specifically recom-mends that the Civil Aeronautics Board consider approving the enactment of a Federal legislative program embodying limited liability coupled with compulsory insurance.

The Civil Aeronautics Board has requested interested parties to submit their comments on the report to the Board on or before October 15, 1941. After the Board formulates its recommendations relative to the Uniform Aviation Liability Act, they will be transmitted to this Conference.

At the March meeting of the House of Delegates of the American Bar Association, Mrs. Mabel Walker Willebrandt, Chairman of the Committee on Aeronau-tical Law, submitted a report recommending that the American Bar Association “withhold endorsement of recommendation of a Uniform Regulatory Act ap-proved in 1935.” On the motion of Mr. Sidney Teiser of Oregon, the motion of Chairman Willebrandt to approve the recommendation was laid upon the table by a vote of 54 to 43. Mr. George B. Logan of the Committee filed a minority report which reads in part as follows:

“The true position of the American Bar Asso-ciation on this subject should be in substance as follows:

“(a) We believe in the encouragement and fostering of aviation in all its branches, both as a matter of National defense and as a matter of the

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development of an industry which offers much to the progress of the Nation.

“(b) We believe that part of this fostering and encouragement should be by regulation de-signed to improve safety, enhance public confi-dence and eliminate deterring abuses.

“(c) We believe that there should be a dom-inant regulatory authority and that that authori-ty should be and is the Federal Government.

“(d) We believe that regulations by the state which do not conflict with Federal regula-tions, have the same possibilities for encourage-ment and fostering of aviation as regulations by the Federal Government.

“(e) The combined power of the several forty- eight states cooperating in the program of the Federal Government can become a factor of tre-mendous importance and should neither be elim-inated nor discouraged. The Uniform Regulatory Act heretofore approved by this Association, by the Commissioners of Uniform State Laws and by the Aeronautical Law Committee in 1935 is the type of legislation which exemplifies the above policy. This legislation should be promoted and inimical laws should be opposed.”

During the year the members of the Committee have cooperated with the Civil Aeronautics Board in the preparation of a Model Airport Zoning Act which has been given a large distribution, and the Commit-tee understands adopted by a number of states.

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The Committee recommends that it be continued, authorized to prepare and submit to the Civil Aero-nautics Board comments upon its report in due time and make oral presentation of the opinion of the Committee, if such oral presentation is desirable, and following the Civil Aeronautics Board’s own recom-mendations, to make such further report to this Conference as seems proper under the circumstances, bearing in mind the position so admirably expressed by Mr. Logan in his minority report.


ROBERT T. BARTON, JR., Chairman, ROBERT K. BELL, W. JEFFERSON DAVIS, ALBERT FAULCONER, B. ALLSTON MOORE, JOHN H. WIGMORE, GEORGE W. WORTHEN, JOHN P. DEERING, Chairman, Uniform Public Law Acts Section.

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CONFERENCE HAND BOOK (1941) PAGES 66-67

MR. HARNO: Mr. Chairman, the next four acts all deal with aviation, and I will read all four of them if I may and then make the recommendation. Aero-nautics Act. This Act was adopted in 1922. It has had twenty-two adoptions. It stands in need of immediate revision. Air Licensing Act. Seven states have adopted this Act – Idaho, Louisiana, Maine, Maryland, North Dakota, Tennessee, and Vermont. It was approved in 1930 and the last state to enact it was Vermont in 1932. It is quite out of date and should be thoroughly revised. Aeronautical Regulatory Act. This Act has had three adoptions. It was approved in 1935. Air-ports Act. This Act was approved in 1935 and has been adopted in only two states.

A program to draft a Uniform Aeronautical Code has been before the Conference for some time. In 1941, Robert T. Barton, Jr., Chairman of the Special Committee on the Uniform Aeronautical Code, re-ported on the work of his Committee and on the status of the three acts approved by the Conference in 1938, namely, the Uniform Aviation Liability Act, the Uniform Air Flight Act, and the Uniform Air Jurisdic-tion Act. These Acts were withheld by the Executive Committee because Congress in the same year (1938) had created the Civil Aeronautics Board which was making a comprehensive study of the whole subject (Handbook, 1941, pp. 114-115; 186-188).

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In 1942 the Public Law Acts Section reported that the Uniform Aeronautical Code was still in the hands of the Committee (Handbook, 1942, p. 161).

Recommendation: That the Aeronautics Act, the Air Licensing Act, the Aeronautical Regulatory Act, and the Airports Act be withdrawn.

I move the approval of the recommendation.

The motion was seconded, put to a vote, and carried.

MR. HARNO: Foreign Acknowledgments Act. This Act was approved in 1914 and has had eight adop-tions. It has been substantially superseded by other acts approved by the Conference.

Recommendation: That the Act be withdrawn.

I move the approval of the recommendation.

The motion was seconded, put to a vote, and carried.

Documents

In The Supreme Court of the United States · Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146 (1947) ... vicarious liability as lessor of a dangerous instrumen-tality