SC Lawyer, Jan. 2004, #7. Post September 11 aviation law: a proliferation of litigation, allegations of racial discrimination and prosecutions of unruly passengers.

• Author: By Mark C. Fava

South Carolina Lawyer

2004.

SC Lawyer, Jan. 2004, #7.

Post September 11 aviation law: a proliferation of litigation, allegations of racial discrimination and prosecutions of unruly passengers

South Carolina LawyerJanuary 2004 Post September 11 aviation law: a proliferation of litigation, allegations of racial discrimination and prosecutions of unruly passengersBy Mark C. FavaThe tragic events of September 11, 2001, dramatically changed many aspects of our lives. No aspect has been more drastically impacted than air travel. Since September 11, courts have been faced with litigation as a result of the terrorists' attacks, allegations of air carrier racial discrimination and actions involving unruly passengers. This article provides a brief overview of these hot topics in domestic aviation law.

The airline as a common carrier

Air disasters result in multi-million dollar litigation. In some cases, with evidence of pilot error or mechanical malfunction, the airline's burden of overcoming the "common carrier" standard of care is difficult. "A public carrier is not the insurer of its passengers' safety. It is, however, required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport." Schwamb v. Delta Air Lines, 516 So.2d 452 (La. Ct. App. 1988). It was more than a year before plaintiffs sued the air carriers due to the 9/11 plane crashes. Before 9/11, lawsuits were typically filed within days of an accident. The litigation and subsequent appeals last for years.

The 9/11 litigation now appears to be headed in that direction. The Air Transportation Safety and System Stabilization Act, Pub. L. 107-42, 115 Stat. 230 (2001), passed by Congress on September 22, 2001, governs 9/11 litigation against the air carriers. The Act specifies that the Southern District of New York Federal District Court has exclusive and original jurisdiction over all civil actions. Section 408(b)(3). The substantive law, including the applicable choice of law provision, is governed by the law of each crash site - either New York, Pennsylvania or Virginia. Section 408(b)(2). Judge Alvin K. Hellerstein is the presiding judge, and his rulings can be found at www.nysd.uscourts.gov. The Act specifically caps the air carriers' liability for all compensatory and punitive damages to the limits of their insurance policies. Section 408(a).

The Victim Compensation Fund

Most unprecedented, in the Act, Congress implemented a Victim Compensation Fund to compensate the injured and the personal representatives of the more than 3000 killed. Sections 401-407. New York attorney Ken Feinberg, the appointed special master of the Fund, reviews all claims and decides financial awards with finality. Fund applicants waive their right to sue air carriers although they can proceed against foreign terrorists and their supporters. Section 405(c)(3)(B). As of mid December 2003, the master had issued 1368 awards out of a total of 4534 death claims. For those claims, the average award was $1.8 million with the median award being $1.4 million. With respect to injury claims, the master had issued 400 awards. The lowest award was $500, and the highest amount awarded to date of $7.9 million was given to a burn victim survivor. The deadline for filing for the Fund was December 22, 2003. Highly informative updates on the Fund's progress can be found at its Web site, www. usdoj.gov/victimcompensation.

The Fund has been the subject of criticism. With noneconomic damages limited to $250,000 for death claims for single individuals and the master's ability to offset collateral sources, many criticized awards as being artificially low and a political precursor to tort reform. Early on, a group of potential claimants sued the special master claiming he was abusing his discretion by limiting damage awards. Judge Hellerstein rejected the claimants' arguments, and the Second Circuit affirmed his decision. Colaio v. Feinberg, 262 F. Supp.2d 273 (S.D.N.Y. 2003), aff'd in part, appeal dismissed in part, Schneider v. Feinberg, 345 F.3d 135 (2d Cir. 2003). However, critics should remember that the Fund is not designed as a traditional tort recovery system in which one has to endure years of litigation and must prove negligence to be awarded damages that in turn will be reduced by expenses and a contingency fee. Instead, Congress designed it as a remedial measure to provide fair and rapid financial relief. Several talented South Carolina attorneys have provided exceptional pro bono representation for South Carolina claimants. See sidebar on page 37.

The proliferation of litigation

With respect to those who have elected to pursue a traditional legal remedy against the air carriers, the air carriers have been divided into two groups. The first group is composed of the airlines whose aircrafts were directly involved in the horrific terrorist hijackings - United and American. The second group of peripheral carriers is made up of all other defendant air carriers. Just about every carrier with a ticket counter at one of the three hijacker...