The Seasons They Go Round and Round

Abstract

When an aviation accident occurs, courts in the United States are frequently presented with a claim that an aircraft or one of its component parts should be deemed ‘defective’. In considering this type of claim, defendants almost always argue that the product met FAA certification standards and was deemed safe by that agency. Several recent US decisions as well as the fatal accidents involving the 737MAX have once again focused attention on this issue. This article addresses how some US courts have used circular reasoning in analysing the meaning of the federal statute and regulatory regime which govern product certification and aviation safety generally. The first section of this article examines the initial decision to address this issue and the flaws in the analysis that caused the court to reject this defence. The next section examines a subsequent decision which pointed out the foregoing flaws and held that the entire field of aviation safety was preempted. The following sections address how the first court recognized the flaw in its initial rationale while another panel of the court which first recognized that flaw issued a decision which hearkened back to the rationale of the initial court’s decision. Although Supreme Court review of the latter was requested, the FAA urged that Court to wait until the 737Max issues played out before addressing this subject and that is what the Supreme Court agreed to do. While final resolution of this issue will require a Supreme Court determination, a review of the decisions issued to date provides useful context for analysing how this issue will ultimately be resolved. It is the author’s belief that federal standards will ultimately be recognized to control and that FAA certification will either conclusively establish that the product is safe or create a presumption regarding that fact. aviation product preemption, aviation product certification, FAA aircraft certification, aviation safety, US case law