FAA Issues Final Rule to Improve Helicopter Safety

Nearly coincident with the helicopter industry's new global safety campaign (and as a follow-up to a previous blawg), the U.S. Department of Transportation’s Federal Aviation Administration ("FAA") recently issued a final comprehensive rule that 

requires helicopter operators, including air ambulances, to have stricter flight rules and procedures, improved communications, training, and additional on-board safety equipment. The rule represents the most significant improvements to helicopter safety in decades and responds to government’s and industry’s concern over continued risk in helicopter operations.

According to the FAA, within 60 days, all operators will be required to use enhanced procedures for flying in challenging weather, at night, and when landing in remote locations. And, within three years, helicopter air ambulances must use the latest on-board technology and equipment to avoid terrain and obstacles, and within four years, they must be equipped with flight data monitoring systems.

"Helicopter safety came under the spotlight after the number of air ambulance accidents reached 'historic levels' between 2003 and 2008, with 2008 being the deadliest," according to Aviation Week.

Under the new rule, all Part 135 helicopter operators are required to:

• Equip their helicopters with radio altimeters.

• Have occupants wear life preservers and equip helicopters with a 406 MHz Emergency Locator Transmitter (ELT) when a helicopter is operated beyond power-off glide distance from the shore.

• Use higher weather minimums when identifying an alternate airport in a flight plan.

• Require that pilots are tested to handle flat-light, whiteout, and brownout conditions and demonstrate competency in recovery from an inadvertent encounter with instrument meteorological conditions.

In addition, under the new rule, all air ambulance operators are required to:

• Equip with Helicopter Terrain Awareness and Warning Systems (HTAWS).

• Equip with a flight data monitoring system within four years.

• Establish operations control centers if they are certificate holders with 10 or more helicopter air ambulances.

• Institute pre-flight risk-analysis programs.

• Ensure their pilots in command hold an instrument rating.

• Ensure pilots identify and document the highest obstacle along the planned route before departure.

• Comply with Visual Flight Rules (VFR) weather minimums, Instrument Flight Rules (IFR) operations at airports/heliports without weather reporting, procedures for VFR approaches, and VFR flight planning.

• Conduct the flight using Part 135 weather requirements and flight crew time limitation and rest requirements when medical personnel are on board.

• Conduct safety briefings or training for medical personnel.

The complete rule can be viewed here.

Forget Drones. Helicopter Safety NTSB Priority

The National Transportation Safety Board ("NTSB") announced that one of its focus areas in the coming year will center on "an unacceptably high number of helicopter accidents."  Says the NTSB:

In the last ten years, 1,470 accidents occurred involving helicopters used as air ambulances, for search and rescue missions, and commercial helicopter operations such as tour flights. As a result of those crashes 477 people lost their lives and 274 were seriously injured. There is no simple solution for reducing helicopter accidents but safety improvements to address helicopter operations have the potential to mitigate risk to thousands of pilots and passengers each year.

A complete account can be accessed below and here:


What might be most interesting is how, if at all, this focus impacts the evolution of unmanned aerial vehicles (UAV's or "drones"). UAVs and helicopters have operational overlaps when it comes to performing so-called dirty, dull, and dangerous missions. It is an open question whether the use of UAVs in operations traditionally served by helicopters would mitigate against risks the NTSB has identified or might identify.

2014: One Hundred Years of Commercial Air Travel Marked

Happy New Year and Blue Skies in 2014!

Now, at a time when resolutions are made, is also a good time to reflect on something most Americans, and many people around the world, in fact, take for granted.

What's that? Well, the very first day of this new year begins with a very important celebration and anniversary, the first commercial (for hire) airplane flight.

It happened in Florida, whatever the dispute among North Carolina, Ohio, and Connecticut regarding the title of "first to fly."

Reports the Wall Street Journal online:

On Jan. 1, 1914, a wood-and-muslin Benoist XIV flying boat, powered by a noisy, six-cylinder, 75-horsepower engine, took off from St. Petersburg, Fla., with its pilot and one passenger sitting on a small wooden bench, exposed to the elements. The rickety seaplane traveled 18 miles as the crow flies, landing in the Hillsboro River off Tampa, a 23-minute journey at speeds up to 60 miles an hour. Normally such a trip would take two hours on a steam ship across Tampa Bay.

The flight carried a former St. Petersburg mayor who paid $400—about $9,323 in current dollars—for the thrill. It was repeated many times over the next four months, during the short life of the St. Petersburg-Tampa Airboat Line. Historians estimate that more than 1,200 passengers made the trip without mishap, paying $5 one-way, or $116.53 today.

As can be imagined, apart from laws protecting property or holding people responsible for their negligence or intentional acts, there were few laws in 1914 concerning aviation specifically. Over the next ten years, however, there was substantial legal activity at the local, state, national, and international levels as aviation went from "ultrahazardous activity" to a more progressive legal regime that accepted aviation technology as routine without diminishing individual rights where accidents might occur.

Today, 100 years later, we are at a similar point with respect to space commerce.

US Supreme Court to Hear Aviation Transportation Security Act - First Amendment Case

This week, on Wednesday, the Supreme Court of the United States will hear argument in Air Wisconsin Airlines Corp. v. Hoeper, a case involving the interpretation of a federal statute designed to encourage airlines to report suspicious behavior by immunizing them from civil liability for those reports unless they were made with actual malice under the First Amendment. The case touches on the Aviation and Transportation Security Act ("ATSA") and illustrates the ongoing tension between airline operations and post-September 11th safety concerns in our Constitutional Democracy.

Last week the Supreme Court of the United States heard oral argument of Northwest Airlines etc. v. Ginsberg. One observer remarked that

The most remarkable thing about the argument was the almost surreal similarity of the positions of the attorneys arguing for Northwest (former Solicitor General Paul Clement), the government (Assistant to the Solicitor General Lewis Yelin), and Ginsberg (Adina Rosenbaum of Public Citizen). All three agreed that some uses of an implied covenant are permissible, and not preempted. Thus, Clement readily conceded that when it is “just a rule of construction” that is “merely constructing the express terms of the contract,” the implied covenant should not be preempted.

A copy of the transcript appears here:

US Supreme Court Takes Flight - to Hear Airline Deregulation Act Case

Aviation cases brought before the United States Supreme Court are infrequent, but on December 3, 2013, the high court will hear argument in a case styled Northwest, Inc. v. Ginsberg, which USA Today reports this way:

The airline revoked Rabbi Binyomin Ginsberg's membership in the WorldPerks Platinum Elite program in June 2008. He had complained 24 times in eight months about Northwest's service and sought "compensation over and above (Northwest's) guidelines," according to the airline's written argument.

Ginsberg, who flies 75 times a year as a lecturer, filed a federal class-action lawsuit seeking $5 million, saying he was dropped without adequate cause. He acknowledged complaining about getting bumped from flights, but not every time.

"Rabbi Ginsberg appealed solely with respect to the claim for breach of the implied covenant of good faith and fair dealing," Ginsberg's written argument said.

But Northwest, which is now part of Delta Air Lines, argued that the Airline Deregulation Act of 1978 prevents lawsuits governing "price, route or service of an air carrier."

It is true that the Airline Deregulation Act preempts state law claims that "relate to" airline prices, routes, or services.

What will be interesting in this case is whether the Supreme Court determines, as it has in the past, that frequent flyer programs represent contract rights and voluntary airline undertakings that are not preempted under the federal deregulation act, or whether the passenger's particular claim here (including "bumping"), falls within the "price, route, or service" an air carrier offers so as to be preempted. 

Update to Airport Premises Liability Law in Florida

Ravich Law Firm, P.A. is pleased to release its 2014 Florida Aviation and Space Law Report.

Among the cases reported there is Kenz v. Miami-Dade County, an interesting lawsuit involving the burden of proof in airport slip and fall cases.

After slipping on liquid and falling at Miami International Airport, a pedestrian filed suit against Miami-Dade County, alleging permanent injuries.  At the time suit was filed, Fla. Stat. § 768.0710 (2002) was in effect, providing that in a negligence action involving a transitory foreign substance in a business establishment, “[a]ctual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.” 

After suit was filed, but before trial commenced, Fla. Stat. § 768.0755 (2010) took effect and superseded Fla. Stat. § 768.0710, effectively returning Florida law to an earlier status, and providing that a person who slips and falls on a transitory foreign substance in a business establishment “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”  Miami-Dade County subsequently filed a motion seeking a determination that § 768.0755 was applicable to the case and that the statute should apply retroactively because it was procedural in nature, rather than substantive. 

Miami-Dade Circuit Court Judge Spencer Eig entered summary judgment adverse to the plaintiff given the absence of any proof the county had actual or constructive notice of any dangerous condition.  Florida’s Third District Court of Appeal affirmed given the procedural nature of issues relating to a party’s burden of proof.

AA-USAir Merger Approved by US Department of Justice

The New York Times reports that

The Justice Department has reached a preliminary agreement to settle its fight with American Airlines and US Airways over their proposed merger, according to a court document filed on Tuesday. Under the proposal, American and US Airways would sell 104 takeoff and landing slots at Ronald Reagan National Airport in Washington, 34 slots at La Guardia Airport in New York, and various assets at five other airports, including O’Hare Airport in Chicago, Los Angeles International Airport and Boston Logan International Airport. The settlement still needs to be approved by the Federal District Court in the District of Columbia as well as a judge overseeing American Airlines’ bankruptcy proceeding. The airlines are confident they can now close their merger deal by mid-December

The implications of the merger are very significant here in Miami from an economic perspective. American is a major employer in the region and has a robust network of flights to and from Latin and South American and Europe. Because American Airlines already operates as a hub with few flights overlying USAir's route system (USAir typically served specific markets with a few flights a day to Charlotte, Philadelphia), it is not clear that domestic operations will be impacted to any remarkable measure. 

Not the case in other cities, particularly Washington, D.C. and New York (LaGuardia). As part of a stipulated agreement with the federal government, the merged airline will have to divest of particular "slots" to "low cost carriers" such as JetBlue to ensure the promise (or what is left of the promise) of a contestable deregulated airline marketplace. 

A copy of the proposed consent order appears here:

AA-USAir Proposed Final Judgment.pdf by Timothy M. Ravich, Esq.