Federal law prevents state common law claims against former airliner owner involved in multi-fatal crash in Cuba – Aviation
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On May 18, 2018, a 39-year-old Boeing 737 leased by a Mexican company and operated by Cuba’s flagship carrier, Cubana, crashed shortly after takeoff near Havana; 112 people were killed in this tragic accident.
In addition to suing the airline and aircraft manufacturer, among others, the plaintiffs sued a former owner of the plane, Wells Fargo Trust Company. Wells Fargo had bought the plane in 2005 and sold it to a Mexican company in 2008, about ten years before the crash. Wells Fargo said it did not own or control the plane during the three years it was owned, between 2005 and 2008.
The plaintiffs alleged that when Wells Fargo sold the plane in 2008 it was “defective and unreasonably dangerous” and “had defects in the flight control surfaces, rudder and rudder control system, throttle rods rudder power control unit, the aircraft stabilizer and more generally, the engine.” The plaintiffs also alleged that Wells Fargo “bought and sold the aircraft without including any warning regarding the effect of aging on the aircraft”, and was liable due to the “failure to correct, remedy and repair the conditions unsafe and defective”, for selling the aircraft “in an unsafe condition” and for “negligent failure to inspect and discover” the alleged defects and unsafe conditions.
Wells Fargo filed a motion to dismiss Federal Rule 12(b)(6) on various grounds, including its contention that plaintiffs’ state common law tort claims were preempted under a provision of the Federal Aviation Act, 49 U.S.C. § 44112which in a section titled “Limitation of Liability“protects” owners and lessors from liability for bodily injury if they did not have actual possession or operational control of the aircraft. Specifically, the law provides the following:
(b) Liability.—A lessor, owner, or secured party is liable for personal injury, death, or loss or damage to property only while a civil aircraft, aircraft engine, or propeller is in the possession effective or under the operational control of the lessor, the owner. , or the Warranted Party, and bodily injury, death, or property loss or damage occurs due to:
- the aircraft, engine or propeller; or
- flying or dropping an object from the aircraft, engine or propeller.
In granting the motion to dismiss and finding that the plaintiffs’ state common law claims were preempted and barred under federal law, the court rejected the plaintiffs’ contention that the law did not apply. because plaintiffs purported to sue Wells Fargo “as a seller of the aircraft – and not as owner or lessor.” The court held that “for straight, the affixing of the ‘seller’ label to Wells Fargo makes no substantial difference”, considering that if “owners, lessors or non-custodial and non-operating security holders of an aircraft could be held liable after the to have sold would reduce the supply of financiers for the planes.
Finally, granting the motion to dismiss without prejudice, the court said plaintiffs “may propose an amendment to the complaint if they believe that preemption can be avoided with new allegations.”
JAGP v. Aerolineas Damojh, SA/ de CV, 2022 US Dist. LEXIS 24858 (ND Ill. February 11, 2022).
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