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
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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
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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
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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
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briefs in this case, and copies of the letters of consent are
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parties received timely notice of amicus curiae’s intention
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2
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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
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which approves the aircraft’s design as safe and airworthy—that is recognized by local authorities.
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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.
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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
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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
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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
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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.
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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
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achieve in practice. “The uniformity of the regulations, standards and procedures for [worldwide] application requires harmonization of the potentially
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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
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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
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granted by other national and supranational aviation
authorities. For example, under a bilateral agreement between the United States and the European
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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,
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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
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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
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competence and regulatory capability for performing
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Detailed international negotiations ensure that the
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.