Since Congress passed the Airline Deregulation Act of 1978, travelers have benefitted from airline deregulation through discounted prices and greater access to air travel, but these benefits have largely been offset by the reality that many airline passengers are unsatisfied with the airline industry’s customer service, or lack thereof. This Comment argues that the United States should follow the European Union’s lead and, in accordance with Regulation EC 261, require airlines to compensate passengers when their flights are delayed or canceled. The concentrated aviation industry has created a market that does not adequately protect airline passengers, and the courts have not provided passengers with an adequate venue for relief. Enacting legislation similar to Regulation EC 261 would make airlines accountable, improve service at a marginally low cost, and generate a more uniform standard of airline passenger rights, creating more transparency and certainty for both airlines and passengers.

If you are injured in an aviation disaster or lose a loved one in a plane crash, may you seek recovery under state law? Do federal regulations provide adequate opportunities to compensate aviation crash victims? These are questions few people think to ask themselves. A more common query is what entity regulates the more than 16 million flights that occur yearly in the U.S., and how do you know whether the aircraft you fly on are safe?

The tragic Boeing 737 MAX crashes initiated a federal oversight investigation into the Federal Aviation Administration (FAA). Industry whistleblowers revealed severe lapses in the FAA’s aircraft certification regime and a culture that promoted unsafe practices in aircraft design and manufacturing. Despite crucial reforms, the ability of uniform federal standards to protect aviation consumers is under fire.

In a majority of U.S. jurisdictions, the Federal Aviation Act and associated federal regulations preempt all state law claims in aviation safety cases. The effect of this approach—few plaintiffs recover in aviation product liability suits, and the families of aviation crash victims go uncompensated. However, in Sikkelee v. Precision Airmotive Corp., the Third Circuit offered a new approach that advocates for field preemption for in-air operations claims but allows recovery under state law for aviation product liability cases. This approach adequately compensates aviation crash victims without undermining the FAA’s extensive and effective in-air regulatory scheme.

This Comment addresses recent reforms to the FAA’s aircraft certification program and the ongoing circuit split regarding federal preemption of aviation safety claims. Further, this Comment seeks to analyze the fundamental differences between in-air operations regulations and rules governing aircraft design and manufacture to explain why different treatment of these claims is warranted. Ultimately, this Comment advocates for the Sikkelee methodology to provide ample opportunity for plaintiff recovery without unnecessarily undermining FAA regulatory authority.

The Montreal Convention is a multilateral treaty that comprehensively regulates international air carriers. Specifically, Article 17 of the treaty allows passengers to recover against air carriers for injuries or deaths on international flights, so long as certain requirements are met. In Air France v. Saks, the Supreme Court held that “accident”—a controlling term in Article 17—describes an event that is external to the passenger and “unexpected or unusual.” Last year, in Moore v. British Airways PLC, the First Circuit purported to identify a split over what this language means. According to Moore, there are courts who (correctly) gauge whether an event is unexpected or unusual from the perspective of an airline passenger with ordinary experience in commercial air travel (an objective standard that I will call the Reasonable Passenger Approach). On the other hand, there are courts who (incorrectly) determine whether an event is unexpected or unusual from the perspective of the airline industry, using industry norms and customs as guides (a standard I will call the Industry Approach).

In this Comment, I will explain why the standard endorsed by the First Circuit in Moore muddies the waters and how a more holistic, totality-of-the-circumstances approach (the Holistic Approach) offers a better rubric for Article 17 “accident” analyses. Given the recency of the Moore case, my goal in this Comment is to provide timely insight on its blind spots while offering an approach that might rescue Moore from a legacy of confusion.

This paper focuses on the acquisition of aircraft by United States-based airlines. At present in the U.S., airlines are faced with a fierce competition, and to commercially survive, they keep advertising that they operate modern and safe aircraft. Since the beginning of aviation, there does not exist a fully state-owned “flag carrier” in the U.S. On the contrary, the commercial airlines market has always been in the hands of private undertakings. Traditionally, the airlines themselves have arranged the acquisition of their fleets of aircraft. For this purpose, they have to obtain loans from private banks and other non-governmental financial institutions. A substantial amount of credit is annually extended to realize the acquisition of the costly aircraft. The credit is generally supplied through a “purchase-money loan” that is secured on the aircraft. This practice is called asset-based financing. In the U.S., the aircraft which are operated by the local airlines have generally been acquired by means of international finance and lease transactions.

As the acquisition of aircraft is extremely capital-intensive, the financier or lessor must be able to successfully enforce its proprietary interests in the specific aircraft. This requirement is of particular significance in the event that an airline defaults or becomes insolvent.

While the aforementioned need to safeguard the financiers and lessors is undisputed, this article firmly puts forward that also the lessees of aircraft must be adequately protected. The arguments contained in this contribution are substantiated by the local laws and international aviation finance and lease conventions which apply in the United States.

With respect to the local situation currently existing in the U.S., this contribution focuses on the relevant articles of the Uniform Commercial Code (UCC). Moreover, it refers to the manner in which these provisions have been implemented in the substantive property law of the State of New York. It is noted that in several other countries, the local airlines may obtain similar proprietary rights from the lessors. These foreign legal regimes aim, inter alia, to facilitate the creation, validity, and enforcement of the secured rights of the lessees of aircraft. Nevertheless, not all of these instruments are successful in providing the aircraft lessees with adequate security.