Amicus Curiae Brief — Avco Corporation, Petitioner v. Jill Sikkelee, Individually and as Personal Representative of the Estate of David Sikkelee, Deceased, et al.

Supreme Court briefApr 22, 2019

Ask Donna

What actually matters in this document.

Text

No. 18-1140

In the Supreme Court of the United States

AVCO CORP., PETITIONER,

v.

JILL SIKKELEE.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

AIRBUS AMERICAS, INC.

IN SUPPORT OF PETITIONER

THAD T. DAMERIS

ARNOLD & PORTER

KAYE SCHOLER LLP

700 Louisiana Street

Suite 4000

Houston, TX 77002

DAVID J. WEINER

Counsel of Record

SALLY L. PEI

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5000

david.weiner@arnoldporter.com

Counsel for Amicus Curiae

i

RULE 29.6 STATEMENT

Airbus Americas, Inc. is a subsidiary of Airbus

SE. It has no other parent corporation, and no publicly held corporation owns 10% or more of its stock.

ii

TABLE OF CONTENTS

Page

RULE 29.6 STATEMENT ........................................... i

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................3

I. UNIFORM STANDARDS FOR AIRCRAFT

DESIGN ARE ESSENTIAL TO

INTERNATIONAL AVIATION SAFETY .............3

A. National governments have long

recognized the critical importance of

international cooperation in the

aviation industry. .............................................4

B. The U.S. Government works closely

with other countries’ regulatory

authorities to ensure aircraft safety. ...............6

II. STATE LAW DESIGN-DEFECT CLAIMS

AGAINST AIRCRAFT MANUFACTURERS

UNDERMINE INTERNATIONAL

COOPERATION IN AVIATION SAFETY ............9

A. State regulation disrupts the national

uniformity that international

cooperation requires. ........................................9

B. Placing aircraft design standards in the

hands of lay juries is counterintuitive

and contrary to international practice........... 13

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Gibbons v. Ogden,

24 U.S. (9 Wheat.) 1 (1824) .................................... 12

3BZW"UMBOUJD3JDImFME$P,

435 U.S. 151 (1978) ................................................ 10

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008) .......................................... 10, 14

United States v. Locke,

529 U.S. 89 (2000) .................................................. 10

Legislative Materials

S. Rep. No. 1811 (1958) ............................................. 10

Treaties & International Agreements

Agreement between the United States and the

European Community on Cooperation in the

Regulation of Civil Aviation Safety,

E.U.-U.S., June 30, 2008, T.I.A.S. 11-501 ........ 6, 7

Agreement Between the Government of the

United States of America and the Government of Canada for Promotion of Aviation

Safety, Can.-U.S., June 12, 2000,

T.I.A.S. 13118 ........................................................ 7

Agreement Between the Government of the

United States of America and the Government of Israel for Promotion of Aviation

Safety, Isr.-U.S., Dec. 19, 2000 ............................. 7

Agreement for the Promotion of Aviation Safety,

S. Kor.-U.S., Feb. 19, 2008, T.I.A.S. 08-219 ........... 8

iv

Agreement on the Promotion of Aviation Safety

between the Government of the United

States of America and the Government of

Australia, Aus.-U.S., June 21, 2005,

T.I.A.S. 06-1128 .................................................... 7

Annex 8 to the Convention on International

Civil Aviation, ICAO (Apr. 2005) .......................... 5

Convention on International Civil Aviation,

Dec. 7, 1944, 61 Stat. 1180,

15 U.N.T.S. 295 .............................................4–5, 11

Implementation Procedures for Airworthiness

under the Agreement on the Promotion of

Aviation Safety between the Government of

Australia and the Government of the

United States of America

(revised May 7, 2010) ............................................ 7

Implementation Procedures for Airworthiness

under the Agreement between the

Government of the United States of America

and the Government of Canada for

Promotion of Aviation Safety

(revised Nov. 10, 2016) ......................................... 7

Implementation Procedures under the

Agreement between the Government of the

United States of America and the Government of Israel for Promotion of Aviation

Safety (revised Dec. 19, 2003) .......................... 7–8

Technical Implementation Procedures for

Airworthiness and Environmental

$FSUJmDBUJPO#FUXFFOUIF'""PGUIF6OJUFE

States of America and the EASA of the

European Union ...........................................6–7, 11

v

Other Authorities

"WJBUJPO#FOFmUT#FZPOE#PSEFST,

Air Transport Action Group (Apr. 2014)............... 2

Generic Steps for Obtaining a Bilateral Aviation

Safety Agreement-Implementation Procedure

for Airworthiness, Federal Aviation Agency ......... 8

Global Status Report on Road Safety 2018,

World Health Org. ................................................ 9

Valerie P. Hans, Jury Systems Around the World,

4 Ann. Rev. L. & Soc. Sci. 275 (2008) .................. 13

James A. Henderson, Jr. & Theodore Eisenberg,

The Quiet Revolution in Products Liability:

An Empirical Study of Legal Change,

37 UCLA L. Rev. 479 (1990) ................................ 11

Int’l Law Comm’n, Draft Articles on

Responsibility of States for Internationally

Wrongful Acts, with Commentaries,

Rep. of the Int’l Law Comm’n on the Work of

Its Fifty-Third Session,

U.N. Doc. A/56/10 (2001) ............................... 12–13

Michael Milde, Enforcement of Aviation Safety

Standards: Problems of Safety Oversight,

45 German J. Air & Space L. 3 (1996) ........... 4, 5, 6

To70’s Civil Aviation Safety Review 2018, to70

(Jan. 1, 2019) ......................................................... 9

1

INTEREST OF AMICUS CURIAE1

Airbus Americas, Inc. is the North American subsidiary of Airbus SE (“Airbus”), a European multinational aerospace corporation that is one of the largest

aircraft manufacturers in the world. In 2018, Airbus

delivered more than 800 commercial aircraft. Its

products are used by millions of travelers. Airbus’s

new aircraft sold for commercial use are primarily

manufactured and assembled in the European UnJPO  "JSCVTT BJSDSBGU BSF DFSUJmFE BT BJSXPSUIZ VO

der the standards of both the Federal Aviation Administration (FAA) and the European Aviation Safety Agency (EASA). Airbus works extensively with

CPUIBHFODJFTUPBDIJFWFUZQFDFSUJmDBUJPOBOEUPBE

ESFTTJTTVFTUIBUBSJTFJOUIFDVSSFOUnFFU FTQFDJBMMZ

issues that could affect airworthiness.

Uniform airworthiness standards are essential to

Airbus’s ability to design and manufacture aircraft

for operation across the globe. By opening the door

to state regulation of aircraft design, the opinions below not only contravene longstanding federal regulaUJPOBOEQPMJDZ CVUBMTPDPOnJDUXJUIUIFJOUFSOBUJPO

al arrangements that promote worldwide uniformity

in aircraft design. This Court’s review is necessary

1

No counsel for a party authored this brief in whole or in

part. Allianz Global Corporate & Specialty SE (“Allianz”),

which is amicus curiae’s insurer, funded the preparation

and submission of this brief. Apart from Allianz, no one

other than amicus curiae, its members, or amicus curiae’s

counsel made a monetary contribution intended to fund

the preparation or submission of this brief. The parties

IBWF QSPWJEFE CMBOLFU DPOTFOU UP UIF mMJOH PG BNJDVT

briefs in this case, and copies of the letters of consent are

PO mMF XJUI UIF $MFSLT 0GmDF  $PVOTFM PG SFDPSE GPS UIF

parties received timely notice of amicus curiae’s intention

UPmMFUIJTCSJFG

2

UPTBGFHVBSEUIFTUBCMFBOEFGmDJFOUPQFSBUJPOPGUIF

international aviation industry.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Modern aviation is inherently transnational. As

the only rapid, worldwide transportation network,

aviation is essential for international travel. Every

year, more than a billion passengers, including 52%

of international tourists, travel internationally by air.

4FF"WJBUJPO #FOFmUT #FZPOE #PSEFST, Air Transport

Action Group 4 (Apr. 2014), https://bit.ly/2ETxxVO.

The commercial aircraft that ferry tens of thousands of passengers around the globe every day are

themselves a product of—and depend heavily on—

international cooperation. Before any aircraft may

be operated anywhere in the world, it must, among

PUIFS UIJOHT  CF BDDPNQBOJFE CZ B UZQF DFSUJmDBUF—

which approves the aircraft’s design as safe and airworthy—that is recognized by local authorities.

5P GBDJMJUBUF UIJT DFSUJmDBUJPO QSPDFTT  OBUJPOBM

governments have entered into a complex web of

treaties and agreements that are designed to promote uniformity and standardization in the area of

aircraft design, and to permit—where appropriate—

the reciprocal recognition of other countries’ regulatory approvals of aircraft design. Naturally, the concept of global uniformity in aircraft design standards

also presumes consistency at the national level.

The United States’ practice in the area of aviation regulation has long been designed to promote

these international principles. On the domestic

front, the FAA has exercised virtually exclusive regulatory authority over the industry. And the federal

3

government has entered into a multitude of international agreements with its regulatory counterparts in

other countries to promote aviation safety worldwide.

In this area where uniformity is paramount, there is

no place for state regulation—by juries, judges, or

state regulators.

5IF5IJSE $JSDVJUT PQJOJPOT JO UIJT DBTF DPOnJDU

with these longstanding federal and international

policies. By permitting state common law suits to

proceed against aircraft manufacturers even after

the FAA has approved the design at issue, the Third

$JSDVJU TBODUJPOT UIF DSFBUJPO PG mGUZ OFX TFUT PG

standards for aircraft design, directly undermining

the goals of uniformity. This result not only intrudes

on the FAA’s authority; it also places the United

States in violation of its international commitments

to grant reciprocal recognition of other national auUIPSJUJFT DFSUJmDBUJPOT BOE BQQSPWBMT JO UIF BSFB PG

aviation safety.

What is more, the opinions below contemplate

that these additional standards may be formulated

by juries that lack any expertise in aerospace engineering. This notion is highly counterintuitive and

an anomaly in international practice. This Court

should grant review to preserve the integrity of the

national and international systems for the regulation

of aircraft design.

ARGUMENT

I. UNIFORM STANDARDS FOR AIRCRAFT DESIGN ARE ESSENTIAL TO INTERNATIONAL

AVIATION SAFETY

5IFTNPPUI TBGF BOEFGmDJFOUGVODUJPOJOHPGUIF

international aviation industry demands cross-

4

border cooperation and coordination. As one commentator has put it, “[c]ivil aviation could not have

evolved without [worldwide] uniformity in regulations, standards and procedures in relation of air

navigation.” Michael Milde, Enforcement of Aviation

Safety Standards: Problems of Safety Oversight, 45

German J. Air & Space L. 3, 4 (1996).

A. National governments have long recognized

the critical importance of international

cooperation in the aviation industry.

From the very outset, as the potential of air travel as a global transportation network became apparent, national governments recognized the need for international cooperation to ensure aviation safety and

to promote the continued development of the industry. Thus, in 1944, 52 States signed the Chicago

Convention on International Civil Aviation, setting

forth principles “in order that international civil aviation may be developed in a safe and orderly manner

and that international air transport services may be

established on the basis of equality of opportunity

and operated soundly and economically.” Convention

on International Civil Aviation pmbl., Dec. 7, 1944,

61 Stat. 1180, 15 U.N.T.S. 295 (hereinafter “Chicago

Convention”). The United States signed the treaty

on December 7, 1944, and the Senate gave its advice

BOE DPOTFOU UP UIF USFBUZT SBUJmDBUJPO PO +VMZ  

1946. 61 Stat. 1180.

The Contracting States understood that uniformity was key to achieving international aviation

safety, and therefore undertook “to collaborate in securing the highest practicable degree of uniformity in

regulations, standards, procedures, and organization

… in all matters in which such uniformity will facili-

5

tate and improve air navigation.” Id. art. 37. The

Convention therefore created the International Civil

Aviation Organization (ICAO), an agency of the

United Nations whose purpose is to “develop the

principles and techniques of international air navigation and to foster the planning and development of

international air transport.” Id. arts. 43–44. To that

end, the ICAO is charged with adopting international

standards and recommended practices, including

with respect to the airworthiness of aircraft. Id. art.

"$POUSBDUJOH4UBUFUIBUmOETJUiJNQSBDUJDBCMFw

to achieve full compliance with international standards must notify the ICAO of any differences between its own practice and the international standard. Id. art. 38.

To be sure, the project of global uniformity in

BJSXPSUIJOFTT TUBOEBSET IBT QSPWFO EJGmDVMU UP

achieve in practice. “The uniformity of the regulations, standards and procedures for [worldwide] application requires harmonization of the potentially

DPOnJDUJOHJOUFSFTUTPG<>NFNCFS4UBUFTBUEJGGFS

ent levels of technical and economic development,

each of whom may have different national priorities.”

Milde, supra, at 7. While the ICAO has issued recommendations as to minimum international standards for aircraft design, see Annex 8 to the Convention on International Civil Aviation, ICAO (Apr.

2005), https://bit.ly/2UGlkQq, national authorities

remain responsible for implementing and enforcing

their own airworthiness regulations. Due in large

part to disparities in the technological and economic

capabilities of different countries, “ICAO moves

ahead like a fast locomotive, happy with its speed but

without noticing that many wagons of the train may

6

have become unhitched and stay behind.” Milde, supra, at 7–8.

In the absence of true worldwide uniformity—i.e.,

airworthiness standards applicable and enforced

across the globe—individual countries have come to

rely on bilateral and other multilateral agreements

to reconcile different national airworthiness standards and to minimize the need for aircraft manufacUVSFSTUPTFFLSFEVOEBOUUZQFDFSUJmDBUJPOTJONVMUJ

QMFDPVOUSJFT4VDIBHSFFNFOUTSFnFDUOBUJPOBMHPW

ernments’ continued recognition of the need for harmonization and uniformity in the area of aircraft

safety.

B. The U.S. Government works closely with

other countries’ regulatory authorities to

ensure aircraft safety.

In the United States, airworthiness standards

are set forth in regulations promulgated by the FAA,

long considered the gold standard for aviation safety.

But various bilateral agreements provide for FAA

SFDPHOJUJPO PG UZQF DFSUJmDBUFT BOE PUIFS BQQSPWBMT

granted by other national and supranational aviation

authorities. For example, under a bilateral agreement between the United States and the European

6OJPO  UIF 6OJUFE 4UBUFT BDDFQUT DFSUJmDBUJPOT CZ

EASA “as if they were made in accordance with its

own applicable laws, regulations, and requirements.”

Technical Implementation Procedures for AirworthiOFTT BOE &OWJSPONFOUBM $FSUJmDBUJPO #FUXFFO UIF

FAA of the United States of America and the EASA

of the European Union § 1.3.1 (last amended April 2,

2019), https://bit.ly/2V42Vwf (“FAA-EASA Technical

Implementation Procedures”); Agreement between

the United States and the European Community on

7

Cooperation in the Regulation of Civil Aviation Safety art. 4, E.U.-U.S., June 30, 2008, T.I.A.S. 11-501

(“E.U.-U.S. Cooperation Agreement”). Conversely,

&"4" BMTP SFDPHOJ[FT '"" DFSUJmDBUJPOT BT UIPVHI

they were issued in accordance with EU regulations

and standards. FAA-EASA Technical Implementation Procedures, supra, § 1.3.1; E.U.-U.S. Cooperation

Agreement, supra, art. 4. The FAA’s recognition of

&"4"DFSUJmDBUJPOTJTCBTFEPOUIF'""TEFUFSNJOB

tion that EASA’s regulatory system is at least as rigorous as its own, producing equivalent results and

guaranteeing aircraft design safety. See FAA-EASA

Technical Implementation Procedures, supra, § 1.3.1.

The United States has similarly broad reciprocity

arrangements with several other countries, including

Canada, Australia, and Israel.2 The United States

2

Agreement on the Promotion of Aviation Safety between the

Government of the United States of America and the Government of Australia, Aus.-U.S., June 21, 2005, T.I.A.S. 06-1128;

Implementation Procedures for Airworthiness under the

Agreement on the Promotion of Aviation Safety between the

Government of Australia and the Government of the United

States of America § 1.2 (revised May 7, 2010),

https://bit.ly/2vc1lcX; Agreement Between the Government of

the United States of America and the Government of Canada

for Promotion of Aviation Safety, Can.-U.S., June 12, 2000,

T.I.A.S. 13118; Implementation Procedures for Airworthiness

under the Agreement between the Government of the United

States of America and the Government of Canada for Promotion

of Aviation Safety § 1.3.1 (revised Nov. 10, 2016),

https://bit.ly/2UqNQk0; Agreement Between the Government of

the United States of America and the Government of Israel for

Promotion of Aviation Safety art. 1, Isr.-U.S., Dec. 19, 2000,

https://bit.ly/2PnrOxO; Implementation Procedures under the

Agreement between the Government of the United States of

America and the Government of Israel for Promotion of Avia-

8

also has entered into bilateral agreements with cerUBJO PUIFS DPVOUSJFT UIBU EFmOF '"" QSPDFEVSFT GPS

JTTVJOH UZQF DFSUJmDBUFT GPS BFSPOBVUJDBM QSPEVDUT

QSFWJPVTMZ DFSUJmFE JO UIF PUIFS DPVOUSZ   E.g.,

Agreement for the Promotion of Aviation Safety, S.

Kor.-U.S., Feb. 19, 2008, T.I.A.S. 08-219.

These agreements (and numerous others) are the

result of considerable deliberation at the federal level, with input from multiple U.S. agencies that have

an interest in international aviation. See Generic

Steps for Obtaining a Bilateral Aviation Safety

Agreement-Implementation Procedure for Airworthiness, Federal Aviation Agency, https://bit.ly/2KDsKzn.

Permission for the State Department to pursue a bilateral aviation safety agreement is contingent not

only on an interagency determination that an

agreement would accord with U.S. foreign policy, but

also on a thorough technical assessment by the FAA

iFTUBCMJTI<JOH> DPOmEFODF JO B DPVOUSZT UFDIOJDBM

competence and regulatory capability for performing

BJSXPSUIJOFTT DFSUJmDBUJPO GVODUJPOTw  Id. at 1–2.

Detailed international negotiations ensure that the

DFSUJmDBUJPOBOEWBMJEBUJPOQSPDFEVSFTVOEFSBOZCJ

lateral aviation safety agreement are satisfactory to

both parties. Id. at 3–4.

The FAA’s rigorous and comprehensive standards—and its close cooperation with its international

counterparts to ensure that products manufactured

abroad also meet its safety standards—have made

tion

Safety

§

https://bit.ly/2W2yKTz.

1.2

(revised

Dec.

19,

2003),

9

air travel the safest mode of transportation in human

history.3

II. STATE

LAW

DESIGN-DEFECT

CLAIMS

AGAINST AIRCRAFT MANUFACTURERS UNDERMINE INTERNATIONAL COOPERATION

IN AVIATION SAFETY

Permitting a jury to hold aircraft manufacturers

liable for alleged design defects—when those designs

have already received FAA approval—is antithetical

to the uniformity on which the international aviation

system depends. The opinions below open the door to

UIF DSFBUJPO PG mGUZ OFX TFUT PG TUBUF-law standards

for aircraft design. Particularly when these new

standards may be elaborated in an unpredictable and

piecemeal fashion by lay juries that lack any

knowledge or expertise in aerospace engineering, this

development is fundamentally incompatible with the

goal of achieving worldwide uniformity in aircraft

design.

A. State regulation disrupts the national

uniformity that international cooperation

requires.

1. The existence of the international agreements

described above buttresses Congress’s recognition

that “the Federal Government bears virtually complete responsibility for the promotion and supervi3

There were 160 airplane accidents worldwide in 2018, 13 of

which involved a total of 534 fatalities. To70’s Civil Aviation

Safety Review 2018, to70 (Jan. 1, 2019), https://to70.com/to70scivil-aviation-safety-review-2018/. For comparison, roughly 1.8

million people perish in road accidents every year. Global Status Report on Road Safety 2018, World Health Org.,

https://bit.ly/2IymlTh.

10

sion of [the aviation] industry in the public interest.”

S. Rep. No. 1811, at 5 (1958). Indeed, the Senate’s

BEWJDF BOE DPOTFOU UP UIF SBUJmDBUJPO PG UIF $IJDBHP

Convention—which, as discussed, enshrines the

overarching principles of international standardization of airworthiness standards—“indicate[s] that

Congress will have demanded national uniformity” in

this sphere. United States v. Locke, 529 U.S. 89, 103

(2000).

This Court has previously highlighted the need

for national uniformity in design standards relating

to transportation in order to achieve international

standardization. In 3BZW"UMBOUJD3JDImFME$P, 435

U.S. 151 (1978), the Court stated, the “decided congressional preference for arriving at international

standards for building tank vessels” showed that “the

Nation was to speak with one voice with respect to

tanker-design standards.” Id. at 166. So too here:

international uniformity in aircraft design necessarily demands uniformity on the domestic plane.

2. The decision below opens the door to the creaUJPO PG mGUZ BEEJUJPOBM TFUT PG BJSDSBGU EFTJHO TUBOE

ards in the United States. That is because if common-law standards apply, then states may engage in

direct regulation of aircraft safety and aircraft design. As this Court has acknowledged, “[g]eneral tort

EVUJFT PG DBSF  VOMJLF mSF DPEFT PS SFTUSJDUJPOT PO

trade practices, ‘directly regulate’ [a] device itself, including its design.” Riegel v. Medtronic, Inc., 552 U.S.

312, 328–29 (2008); id. at 332 (Stevens, J., concurring

in part and in the judgment). In other words, there

is no distinction between product liability actions

and direct state regulation for purposes of preemption. The Third Circuit’s opinions thus invite indi-

11

vidual states to take an increasingly active role in

the regulation of aircraft design.

This state of affairs runs contrary to longstanding federal regulation and policy. It is highly unlikely that the Congress that enacted the Federal Aviation Act in 1958 contemplated any state regulation,

in any form, in the area of aviation safety. Direct

TUBUF SFHVMBUJPO PG UIJT mFME EJE OPU FYJTU BU UIBU

time, and it was not until the mid-1970s that courts

began to impose state tort liability on theories of defective design. See, e.g., James A. Henderson, Jr. &

Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change,

37 UCLA L. Rev. 479, 484 (1990).

The notion that individual U.S. states may impose their own regulations on aircraft design and

DFSUJmDBUJPO XPVME CF FRVBMMZ TVSQSJTJOH UP BWJBUJPO

authorities and aircraft manufacturers outside the

United States, which have long understood that the

FAA is the exclusive regulator in the area of aircraft

design in the United States. State regulation of aircraft design will inevitably result in a proliferation of

disparate standards across the United States—a result that is inconsistent with the United States’ international obligation “to collaborate in securing the

highest practicable degree of uniformity” in airworthiness regulations. Chicago Convention, supra,

art. 37.

The intrusion of state regulation into the sphere

of aviation safety—thus potentially imposing design

requirements above and beyond what is necessary to

obtain FAA approval—directly undermines the principles of reciprocity and mutual acceptance on which

the United States’ bilateral aviation safety agree-

12

ments are based. For example, as mentioned above,

under the U.S.-EU bilateral aviation safety agreement, the EU accepts the United States’ aviation auUIPSJUJFTmOEJOHTPGDPNQMJBODFBOEBQQSPWBMTiBTJG

they were made in accordance with its own applicable laws, regulations, and requirements.” FAA-EASA

Technical Implementation Procedures, supra, § 1.3.1.

The United States has an international obligation to

EP UIF TBNF XJUI SFHBSE UP DFSUJmDBUJPOT JTTVFE CZ

EU aviation authorities—DFSUJmDBUJPOT UIBU  MJLF

'"" UZQF DFSUJmDBUFT  BSF SJHPSPVT BOE DPNQSFIFO

sive, requiring compliance with thousands of detailed

requirements.

Requiring aircraft manufacturers who have alSFBEZ SFDFJWFE UZQF DFSUJmDBUJPO GSPN &"4" UP BMTP

comply with separate state-law standards for aircraft

design amounts to a refusal by the United States to

recognize EASA’s regulatory approvals. It is of no

relevance for purposes of the United States’ international obligations that these extra-treaty requirements are imposed by state governments, rather

than the United States itself. “The states are unknown to foreign nations … Whatever regulations

foreign commerce should be subjected to in the ports

of the Union, the general government would be held

responsible for them; and all other regulations, but

those which Congress had imposed, would be regarded by foreign nations as trespasses and violations of

national faith and comity.” Gibbons v. Ogden, 24 U.S.

(9 Wheat.) 1, 228–29 (1824) (Johnson, J., concurring).

See also Int’l Law Comm’n, Draft Articles on Responsibility of States for Internationally Wrongful Acts,

with Commentaries, art. 4, Rep. of the Int’l Law

Comm’n on the Work of Its Fifty-Third Session, U.N.

13

Doc. A/56/10, at 40 (2001) (“The conduct of any State

organ shall be considered an act of that State under

international law … whatever its character as an organ of the central Government or a territorial unit of

the State.”). In other words, permitting state governments to impose additional regulations on aircraft design effectively renders the United States’ international agreements a dead letter.

B. Placing aircraft design standards in the

hands of lay juries is counterintuitive and

contrary to international practice.

The opinions below promote an unworkable system that will prove highly detrimental to national

and international uniformity in aircraft design. Aircraft manufacturers around the world must comply

with FAA standards, whether through the procedures set forth in bilateral agreements or by seeking

UZQFDFSUJmDBUJPOEJSFDUMZ*GUIF5IJSE$JSDVJUTEFDJ

sions stand, they must now also consider the unpredictable determinations of American juries that are

ill-suited for the elaborate and highly technical task

of evaluating the safety of aircraft design.

Permitting juries to second-guess the decisions of

the FAA with regard to design standards places the

United States wildly out of step with its counterparts. Civil jury trials are rare as a general matter

outside the United States, even in other common-law

legal systems. Valerie P. Hans, Jury Systems Around

the World, 4 Ann. Rev. L. & Soc. Sci. 275, 282 (2008).

The notion that a jury trial could be an appropriate

way to resolve questions as technical and complex as

the safety of an aircraft’s design is particularly counterintuitive.

14

And for good reason. Aircraft are extraordinarily

intricate machines. An Airbus A350, for example,

has millions of individual parts and complicated, integrated systems. These mechanisms are the subject

of thousands of design standards promulgated by the

FAA and its regulatory counterparts in other countries. The type-DFSUJmDBUJPO QSPDFTT JT OFDFTTBSJMZ

arduous and time-consuming for the manufacturer

and the agency alike. A commercial aircraft manuGBDUVSFS TFFLJOH UZQF DFSUJmDBUJPO GPS B OFX XJEFbody aircraft “might submit 300,000 drawings, 2,000

engineering reports, and 200 other reports in addition to completing approximately 80 ground tests

BOE   IPVST PG nJHIU UFTUTw  1FU"QQ B DJUB

tions omitted).

Questions of expertise aside, the context in which

questions of aircraft design come before a jury makes

tort litigation a poor substitute for the considered

regulatory judgment of the FAA. Whereas the FAA

conducts a comprehensive assessment of the aircraft

BOE XFJHIT UIF DPTUT BOE CFOFmUT PG QBSUJDVMBS EF

sign choices, a jury considers, in the context of a speDJmDBDDJEFOU XIFUIFSBQBSUJDVMBSBJSDSBGUQBSUXBT

defectively designed. But “[a] jury … sees only the

cost of a more dangerous design, and is not concerned

XJUI JUT CFOFmUT <UIPTF> XIP SFBQFE UIPTF CFOFmUT

are not represented in court.” Riegel, 552 U.S. at 325

(2008).

A jury presented with emotional evidence in the

wake of an accident may believe that requiring aircraft manufacturers to include an additional warning

light or incorporate a redundant system is reasonable. But a jury that reaches that conclusion may

have no conception of the potential harm caused by

15

pilots receiving multiple nuisance warnings, or the

structural changes that a redundant system might

require. Moreover, there is a post hoc element to the

work that juries perform that further undermines

the carefully calibrated regulatory scheme that Congress created for aircraft design standards. While

regulatory bodies such as the FAA set forwardlooking standards, juries effectively impose new and

different standards retroactively.

Manufacturers

thus may not know about a change in design standards until it is announced in the form of a jury verdict. Yet despite all these shortcomings in a jury’s

capacity to evaluate aircraft safety, the decision below vests individual lay juries with the power to

override expert determinations by the FAA that a

given design is safe and airworthy.

*

*

*

In all events, the Third Circuit’s opinions stand

to usher in a new era in which states—including

even state legislatures—FYFSDJTF TJHOJmDBOU PWFS

sight and regulatory authority in an area long understood to be reserved to the FAA. The instability

and fragmentation that will result from this change

in U.S. regulatory practice cannot be reconciled with

the principles of uniformity and standardization that

have animated national and international policy in

the area of aircraft safety since the advent of international aviation.

16

CONCLUSION

The petition should be granted.

Respectfully Submitted,

THAD T. DAMERIS

ARNOLD & PORTER

KAYE SCHOLER LLP

700 Louisiana Street

Suite 4000

Houston, TX 77002

DAVID J. WEINER

Counsel of Record

SALLY L. PEI

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5000

david.weiner@arnoldporter.com

Counsel for Amicus Curiae

April 22, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.