FLORIDA AVIATION AND SPACE LAW REPORT

2012 Supplement _______________________________________________

I. II.

AIRPORTS AND LAND USE CORPORATE AND GENERAL AVIATION

2 5 9 13 17 19

III. LABOR AND EMPLOYMENT IV. V. VI. LITIGATION REGULATORY LAW SPACE LAW

_______________________________________________ TIMOTHY M. RAVICH, ESQ. FLORIDA BAR BOARD CERTIFIED AVIATION LAWYER RAVICH LAW FIRM, P.A. TELEPHONE: 305-213-1223 travich@ravichlawfirm.com

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I.

Airports and Land Use

JurisdictionCrime Aboard Commercial Airplane Sanders v. State 77 So. 3d 914 (Fla. 4th DCA 2012) Approximately forty-five minutes prior to landing, a passenger on a commercial flight from Phoenix, Arizona, to Fort Lauderdale, Florida, allegedly stole $500 from a fellow passenger's purse. A flight attendant intervened and compelled the return of the money. The airplane was not in Florida's territory at any point when the theft or recovery of the money took place, but when the airplane landed, the Broward County Sheriff's Office effected an arrest and the offending passenger was charged and convicted of grand theft in excess of $300. The conviction was overturned under Fla. Stat. 910.005 (2008) on the basis that Florida did not have jurisdiction because all of the elements of the theft occurred before the airplane reached Florida. The state's criminal jurisdiction statute "is unique in that it encompasses both the completed offense and the attempt as the same offense." The passenger at issue neither committed a theft "wholly or partly within" Florida nor did her action "constitute[ ] an attempt to commit an offense within Florida." Consequently, the conviction should have been dismissed and was reversed by Florida's Fourth District Court of Appeal. Duty of IndemnificationService and Maintenance Contracts Garcia v. Schindler Elevator Corp. 459 Fed. Appx. 865 (11th Cir. 2012) Miami-Dade County was sued for negligence arising from injuries allegedly sustained on an escalator at Miami International Airport. The county owns and operates the escalator and contracted with Schindler Elevator Corporation ("Schindler") for the escalator's maintenance. The county settled by way of a consent judgment and assigned all of its rights and remedies against Schindler. Schindler was then sued for wrongfully refusing to indemnify and defend the county under its service and maintenance contract. The Eleventh Circuit Court of Appeals affirmed summary judgment in Schindler's favor given that (1) Schindler never made a determination in the first instance whether to defend the county, and (2) the county did not provide Schindler with documents necessary for it to determine whether the county was entitled to a defense.
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Trademark Infringement and Unfair Competition Park 'N Fly Service Corp. v. Airport Parking, Inc. 2012 WL 1949361 (S.D. Fla. 2012) Park 'N Fly Service Corporation ("Park 'N Fly") is the owner of the "PARK 'N FLY" mark for the largest off-site airport parking and shuttle service in the United States, including facilities at Ft. Lauderdale-Hollywood International. Airport Parking, Inc. is a direct competitor of Park 'N Fly and solicited business by prominently displaying banners close by to a Park 'N Fly facility in Ft. Lauderdale. The banners had terms such as "Park & Fly" and Park & [Airplane Logo]" and other phrases confusingly similar to the Park 'N Fly marka mark used since 1967 and registered with the United States Patent and Trademark Office since 1979. After its cease and desist letters went unanswered, Park 'N Fly brought an action for trademark infringement and unfair competition. United States District Judge Robert N. Scola, Jr. entered a permanent injunction and awarded attorneys' fees and costs in Park 'N Fly's favor. The district court ruled that Airport Parking, Inc. used a valid, registered service mark in commerce without the registrant's consent and in a manner that was likely to cause confusion, or to cause mistake or deceive. Moreover, given its continued use of the protected marks even after it was notified of its infringing uses, Airport Parking, Inc.'s conduct presented one of those "exceptional cases" of malicious, fraudulent, deliberate, and willful conduct justifying an award of attorneys' fees and costs under 15 U.S.C. 1117(a). Grant Assurance 22Unjust Discrimination in Airport Leases BMI Salvage Corp. v. Fed. Aviation Admin. 2012 WL 2924025 (11th Cir. 2012) BMI Salvage Corporation ("BMI") leased ramp space at Opa-Locka, a public use, general aviation airport in Miami-Dade County, for the demolition and salvage of old airplanes. BMI also established Blueside Services, Inc. ("Blueside"), a fixedbase operator ("FBO"), to provide aviation repair services. Though not an airport tenant, Blueside sought a development lease for both ramp space for its demolition and building space for its FBO repair operations. Blueside did not obtain such a lease, yet the county executed a thirty-five year development lease with Miami Executive Aviation and a three-year lease with building space for Clero Aviation.

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BMI and Blueside filed a complaint with the Federal Aviation Administration ("FAA") pursuant to 14 C.F.R. 16.23, alleging that the county engaged in unjust discrimination by treating other tenants more favorably in violation of Grant Assurance 22, which requires the county to "make its airport available ... without unjust discrimination, to all types, kinds, and classes of aeronautical activities." See 49 U.S.C. 47107. The FAA dismissed the complaint and the Eleventh Circuit Court of Appeals affirmed. Noting that an agency's reasonable interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with applicable regulations, the appellate court endorsed the FAA's rationale for dismissal, reasoning that BMI's salvage and demolition operations (1) are not "aeronautical activities," but more akin to manufacturing aircraft or aircraft parts, and (2) are not necessary for and do not have a direct relationship to the operation of an aircraft. Moreover, substantial evidence existed that Blueside was not similarly situated with other tenants even if its FBO operations were aeronautical in character. Whereas Clero Aviation was a certified repair station that needed to relocate from a condemned building to an enclosed facility, Blueside had no building space and needed ramp space and a paved area to comply with environmental regulations. Furthermore, whereas Miami Executive Aviation was an FBO that did not engage in demolition or salvage, Blueside planned such operations without proof of financial viability. Federal Preemption of Airport Land Use PlanStanding and Ripeness Craig Air Center, Inc. v. City of Jacksonville 2012 WL 3139547 (M.D. Fla. 2012) Two fixed-based operators at Craig Municipal Airport sought a declaration that a provision of the City of Jacksonville's comprehensive land use plan restricting the length of runways at the airport was preempted by federal law. Judge Timothy J. Corrigan of the United States District Court for the Middle District of Florida dismissed the lawsuit because the operators had presented no case or controversy and lacked standing. There was no showing that runway expansion by the Jacksonville Airport Authority ("JAA"), an independent agent with the exclusive authority to effect runway improvements, was "likely," and not "speculative," "conjectural or hypothetical." Moreover, while the JAA, the Federal Aviation Authority ("FAA"), and Florida Department of Transportation ("FDOT") jointly drafted a Master Plan for runway expansion, the plan did not represent a binding commitment, particularly where it was uncertain whether the JAA would receive any funding from the FAA or FDOT.
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II. Corporate and General Aviation

Personal Services Obligation to Fly Experimental Airplane McCord v. McCord 94 So. 3d 719 (Fla. 2nd DCA 2012) A husband and wife mediated a marital settlement agreement providing for use of the husband's six-seat turbo-prop airplane: "The Wife shall be entitled to use the Husband's airplane for up to four hours per month for 24 consecutive months and she shall be responsible for showing her appreciation to the Pilot thereof; any time not used in any month by the Wife shall be waived. The Husband will pay the fuel, pilots' fee, and expenses." Only the husband could fly the aircraft because regulators decreed it "experimental." Two months after the marriage dissolved, the husband refused to pilot the airplane and the wife sued to compel his "full cooperation." The trial granted the motion, but Florida's Second District Court of Appeal reversed, holding that the parties' agreement neither "suggests or could be construed to create a personal services obligation on the part of Mr. McCord to be Ms. McCord's personal pilot." While the ex-husband was required to insure the airplane's availability, flight worthiness, and compliance with necessary and appropriate regulations, the parties' agreement contemplated that a third party would be hired or contracted to fly the airplane. A contrary interpretation would be tantamount to rewriting the parties' contract and creating a duty for which the ex-husband neither bargained nor agreed. Aircraft Registration and RecordationOral Conditional Sale Agreement United States v. Starcher --- F. Supp. 2d ----, 2012 WL 3149260 (M.D. Fla. 2012) In October 2010, Homeland Security Investigations agents seized a Cessna 206 aircraft from a private residence in Orlando, Florida. The aircraft was forfeited as part of plea agreement with a criminal defendant who purchased it with proceeds obtained from a drug conspiracy. Two individuals hired to convert the airplane into a seaplane claimed a fifty percent interest in the aircraft pursuant to an oral "conditional sale agreement" made with the criminal defendant. In an action by the federal government to dismiss this claim of interest, Untied States Magistrate Judge David A. Baker of the United States District Court for the Middle District of Florida ruled that the claimants failed to perfect any interest in the aircraft.
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Under Philko Aviation, Inc. v. Shacket, 462 U.S. 407 (1983), "every aircraft transfer must be evidenced by an instrument, and every such instrument must be recorded, before the rights of innocent third parties can be effected." See 49 U.S.C. 44108; Fla. Stat. 329.01. The alleged oral conditional sale agreement was not recorded with the Federal Aviation Administration ("FAA"), whether by filing a lien or recording a bill of sale, under FAA regulations. In addition, the claimants did not assert their written claim or lien until after the government had published its notice of forfeiture. Consequently, they were unsecured creditors and did not qualify as bona fide purchasers who purchased property for value without notice of any defects in the title of the seller. Retention of Deposit under Purchase Agreement Extreme Crafts VII, LLC v. Cessna Aircraft Co. 2012 WL 2376667 (11th Cir. 2012) A Florida company purchased two aircraft from Cessna Aircraft Company ("Cessna") and then entered into a contract to purchase a more expensive third aircraft, the Sovereign, which it hoped to sell to a third party at a significant profit. When the aviation market took a severe downturn, the buyer was unable to sell its position and declined to complete payments on the contract. Cessna, in turn, retained the buyer's $2,250,000 deposit as contractually allowed. The buyer then sued in the United States District Court for the Southern District of Florida, claiming fraudulent inducement and negligent inducement to enter into a contract for the purchase of the Sovereign. The buyer claimed it was told there was a two year wait for the Sovereign; that the Sovereign was in short supply; that there would be no problem "flipping" the aircraft contract; and that the buyer would net $1 million profit upon the sale of the Sovereign contract. The trial court entered summary judgment against the buyer and in favor of Cessna, as the buyer's own representative who took part in the negotiations admitted that Cessna's statements were true when they were made. The Eleventh Circuit Court of Appeals found no dispute that the alleged statements by Cessna's sales representative respecting the marketability of the Sovereign, the present backlog of buyers, and the ability to flip the contract were either true when made, concerned future performance, and/or were speculative and did not rise to the level of fraud or negligent misrepresentation.

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FAA Form 8050-1Evidence of Ownership United States v. Malago 2012 WL 4378102 (S.D. Fla. 2012) The president of North Atlantic Aircraft Services Corporation ("NAASC") brokered the purchase of airplanes in the company's name. He then sold and delivered the airplanes to international customers who later provided funding and specifications for the airplanes. He was indicted under 49 U.S.C. 46306(b)(4) for knowingly and willfully asserting NAASC was the true owner of aircraft when he knew that it was not. In defense, he argued the term "true owner" was ambiguous. For example, under certain aviation regulations, "owner" is defined as "a buyer in possession, a bailee, or a lessee of an aircraft under a contract of conditional sale, and the assignee of that person." See 14 C.F.R. 47.5(d) (2005). Additionally, some courts have ruled that a certificate of aircraft registration is not conclusive as to ownership or have looked to "showings of actual possession, control, title and financial stake" to determine aircraft ownership in forfeiture cases. Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled otherwise, finding that FAA Form 8050-1 makes repeated references to the importance of proof of ownership and the requirement that only an owner may complete the form. Given this fact "and taking into account the extrinsic evidence of the Defendant's extensive familiarity and experience in the aviation business, there is no viable argument that the term [owner] is so fundamentally ambiguous as to preclude conviction as a matter of law." Sale of AircraftCommercial Reasonableness Regions Bank v. Hyman 2012 WL 4479080 (M.D. Fla. 2012) A Florida limited liability company purchased a Gulfstream G-1159A executive jet in 2005 (initially appraised at $6,619,698.00), with each of its members sharing in the expenses for ownership and maintenance, including hangar lease fees, insurance, fuel, pilot and flight crew fees, and sales tax. The loan for the airplane was secured, in part, by joint and several guarantees of members of the company. The company did not receive sufficient revenue from its members to cover operating expenses and it defaulted after entering into a series of unconsented leases in violation of a negative covenant in the operative credit agreement.

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The lender filed suit in federal district court in Tampa on diversity of citizenship grounds, seeking a final judgment against its borrower and guarantors. Two months later, the company commenced an assignment for the benefit of creditors in Hillsborough County Circuit Court. The state court approved the assignee's abandonment of the then-inoperative and unairworthy aircraft to the bank, which ultimately sold the airplane for $625,000 in "as is" condition. The guarantors challenged the sale as commercially unreasonable. United States District Judge Elizabeth A. Kovachevich found that the disposition of the airplane was commercially reasonable in that it was made "in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition" under the Fla. Stat. Ch. 679.627(2)(c). Consequently, the court entered a final judgment of deficiency in the amount of $5,604,598.72. InsuranceConversion and Voluntary Parting Exclusions St. Paul Fire & Marine Ins. Co. v. Luke Ready Air, LLC --- F. Supp. 2d ----, 2012 WL 3126356 (S.D. Fla. 2012) In October 2009, a company that owns airplanes for charter services retained a broker to sell a Beechcraft King Air 200 it financed for $743,000. In March 2010, a buyer purporting to act on behalf of the municipal government in Guadalajara, Mexico executed an Aircraft Purchase and Sale Agreement to purchase the airplane for $640,000. The buyer presented the broker with a "Licitation Order," written in Spanish, as proof of his authority to purchase the aircraft on behalf of the Mexican government. The seller, in turn, hired two pilots to fly the aircraft to Guadalajara airport to close the transaction. Upon receipt of $100,000 in escrow, the seller authorized the pilots to return to the United States on the assumption that remaining funds would be released. The $450,000 balance was never paid, however, and the aircraft was never returned or located. The seller submitted a sworn proof of loss of $1.1 million and its insurer brought a suit for a declaration that the loss fell within the applicable insurance policy's "conversion" and "voluntary parting" exclusion. Judge Kenneth L. Ryskamp of the United States District Court for the Southern District of Florida held that the loss was indeed excluded from the scope of coverage as a matter of law. The court also ruled that a finance endorsement in the operative insurance policy was a breach of warranty endorsement that merely conditioned payment and had no bearing on the scope of coverage.
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III. Labor and Employment

Age DiscriminationFair Treatment of Experienced Pilots Act Avera v. United Airlines, Inc. 465 Fed. Appx. 855 (11th Cir. 2012) Two months before his 60th birthday, a commercial pilot asked his airlineemployer to petition the Federal Aviation Administration ("FAA") to waive the "Age 60 Rule" (see 14 C.F.R. 121.383) pursuant to which no person could serve "as a pilot on an airplane ... if that person has reached his 60th birthday." The airline declined. The pilot next asked for an 18-month leave of absence from the point he turned 60 to when, he hoped, the Age 60 Rule would be eliminated. The airline declined. When the pilot turned 60, he was fired. Five months later, Congress passed the Fair Treatment of Experienced Pilots Act ("FTEPA"), 49 U.S.C. 44729, raising the mandatory retirement age for pilots to 65 years old. The pilot then applied for his pilot position with his former employer, but the airline declined as it had instituted a hiring freeze. The pilot then filed suit in the United States District Court for the Northern District of Florida. In a per curiam opinion, the Eleventh Circuit Court of Appeals affirmed summary judgment adverse to the pilot on the basis the airline's action in denying a leave of absence, terminating the pilot's employment, and not rehiring him was taken in conformance with the FTEPA and Age 60 Rule. Under the FTEPA, 49 U.S.C. 44729(e)(2), "[a]n action taken in conformance with the [Age 60 Rule] may not serve as a basis for liability or relief in a proceeding, brought under any employment law or regulation." Collective Bargaining, Duty of Fair Representation Mann v. Airline Pilots Ass'n, Int'l 2012 WL 1447891 (M.D. Fla. 2012) Ten months after a commercial airline pilot was removed from his position pursuant to the Age 60 mandatory pilot retirement rule, 14 C.F.R. 121.383, Congress increased the age limit to 65. The pilot then claimed he was a "required flight crewmember" entitled to reinstatement. When the Airline Pilots Association ("ALPA") failed to process his grievance or facilitate a board of adjustment as promised, he sued ALPA and the airline for breach of the duty of fair representation and breach of collective bargaining agreement, respectively.
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ALPA moved to dismiss on grounds the pilot did not exhaust his administrative remedies and was no longer a member of the collective bargaining unit, but a retiree to whom a duty of representation did not extend. Judge John Antoon II of the United States District Court for the Middle District of Florida denied the motion, ruling that the pilot's allegation that ALPA failed to process or address the merits of his grievance was sufficient to state a claim for breach of representation. The district court also declined the airline's argument that the pilot was not entitled to reinstatement because he was not "a required flight deck crew member." At least one district court has suggested that a check airman is a required crew member (see Emory v. United Air Lines, Inc., 2011 WL 5025185 (D.D.C. 2011)). Moreover, while the airline cited a regulation for the proposition that "[n]o certificate holder may operate an airplane with less than the minimum flight crew in the airworthiness certificate or the airplane Flight Manual for that type airplane," 14 C.F.R. 121.385, it did not explain what type of airplane was at issue or what minimum flight crew was required for such aircraft. Railway Labor Act Diaz v. Amerijet Int'l, Inc. --- F. Supp. 2d----, 2012 WL 1890704 (S.D. Fla. 2012) The International Brotherhood of Electrical Workers ("IBEW") filed a petition in April 2011 to represent a cargo airline's in-warehouse cargo handlers under Section 9 of the National Labor Relations Act ("NLRA"). The petition was withdrawn, however, when the IBEW recognized that the cargo airline was covered exclusively under the Railway Labor Act, 45 U.S.C. 151 et seq., ("RLA") as administered by the National Mediation Board ("NMB"). Subsequently, the cargo carrier, which was the subject of an investigation for non-compliance with MiamiDade County's Living Wage Ordinance, entered into a service agreement with a third party cargo handling services contractor to manage its British Airways cargo handling operations at Miami International Airport ("MIA"). In turn, the cargo airline terminated its own in-warehouse cargo handlers at MIA. Suit followed on grounds the cargo airline infringed on the right of its employees to engage in and to organize union activities and representation. The cargo airline moved to dismiss on grounds of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3) in that no private right of action existed under the RLA where its employees tried to obtain labor representation under the NLRA. United States District Judge Cecilia M. Altonaga denied the motion.
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The district court ruled that "Plaintiffs allege they took steps to organize themselves. Just because the causes of action under the RLA and NLRA are mutually exclusive does not mean the activities they govern necessarily are, as a matter of law." Additionally, the court found that the employees engaged in activities that "arguably could" merit RLA protection, including meeting with the IBEW pre-layoff and signing and soliciting union cards. Moreover, a jury could infer that the carrier knew of its employees' protected organizing activities and harbored an animus towards those activities. Whether that animus caused the employees' termination or whether the employees would have been terminated anyway, also was an issue for a jury. While the employees' core claims survived, as did their claim for non-pecuniary damages for emotional distress, pain, and suffering, their request for attorney's fees was dismissed. ArbitrationJurisdiction over Minor Disputes Int'l Brotherhood of Teamsters v. Amerijet Int'l, Inc. 2012 WL 4936075 (S.D. Fla. 2012) A labor union certified under the Railway Labor Act, 45 U.S.C. 151 et seq., ("RLA"), as the exclusive representative of the pilots and flight engineers of a cargo airline, asserted several grievances against the carrier relating to alleged violations of a collective bargaining agreement. A System Board of Adjustment deadlocked in considering the grievances and a Systems Board representative of the union requested arbitration of the dispute within thirty days. The carrier contended that the request and notice for arbitration was non-compliant with a specific section of the parties' bargaining agreements in that it was transmitted (by e-mail) by a System Board representative, not the union itself. Rather than initiate the grievance procedures in the parties' agreements anew, the union brought suit in federal district court in Miami to compel arbitration. The carrier moved to dismiss for lack of subject matter jurisdiction (Fed. R. Civ. P. 12(b)(1)), or alternatively for summary judgment, and Judge Federico A. Moreno of the United States District Court for the Southern District of Florida dismissed the union's complaint. Under the RLA, the union's dispute qualified as a "minor dispute," i.e. "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." As such, Judge Moreno ruled that "this Court does not have jurisdiction to proceed further once it has been established that the notice issue is a matter exclusively for the grievance procedures to resolve."
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The district court also dismissed the union's grievances regarding the carrier's categorization of its Port of Spain, Trinidad operations. Because the union's grievances involved exclusively foreign transportation and "[a]lthough the case law does not speak specifically to a situation where, as here, employees are only working abroad periodically, the strength of the precedent limiting the [extraterritorial] scope of the RLA to the United States and its territories is convincing." Consequently, the union's complaint was dismissed. StandingApplication of National Labor Relations Act Amerijet Int'l, Inc. v. Nat'l Labor Relations Bd. 2012 WL 3526620 (S.D. Fla. 2012) In response to an unfair labor practice charge that had been filed with the National Labor Relations Board ("NLRB"), a cargo airline established that it was a "carrier" as defined in the Railway Labor Act, 45 U.S.C. 151 et seq. ("RLA"), and therefore excluded from coverage under the National Labor Relations Act, 29 U.S.C. 151 et seq. While the unfair labor charge was withdrawn, the cargo carrier received another unfair labor charge and was informed by an NLRB agent that both the merits of the new charge as well as the NLRB's jurisdiction over the new charge would be addressed at the same time. The cargo carrier argued that such an investigation exceeded the NLRB's authority and it sought declaratory relief as to the NLRB's jurisdiction and a writ of mandamus compelling the NLRB and its officials to dismiss its charge for want of jurisdiction. The NLRB subsequently asked the National Mediation Board ("NMB") for an opinion as to whether the cargo airline was a "carrier" subject to the RLA. The NMB opined that the carrier and its employees were indeed subject to the RLA. Accordingly, the NLRB withdrew its second unfair labor charge and, though it had already answered the carrier's complaint, moved to dismiss for lack of subject jurisdiction and for failure to state a claim for which relief could be granted. United States District Judge Jose E. Martinez of the United States District Court for the Southern District of Florida granted the motion, ruling that the NLRB did not exceed its authority, but did what it was required to doinvestigate unfair labor practices. In addition, the carrier was not deprived of meaningful and adequate means of vindicating its rights under the NLRA because (1) it could seek review of a decision by the NLRB that the carrier was not subject to the RLA, and (2) in any event, no such decision was made or ever would be made as the charges were withdrawn.
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IV. Litigation
JurisdictionForum Non Conveniens Rolls-Royce, Inc. v. Garcia 77 So. 3d 855 (Fla. 3d DCA 2012) A Bell Model 407 helicopter used for medical services and owned by the Mexican government crashed in Morelia, Mexico, in 2006. The pilot and two passengers, each of whom was a Mexican citizen, brought a negligence and strict liability action in Miami-Dade County, alleging the helicopter's engine, Full Authority Digital Engine Control system ("FADEC"), and associated components and wiring harness failed due to negligent design, manufacture, modification, and repair. The designer and manufacturer of the helicopter, together with the engine manufacturer, moved to dismiss the action on grounds of forum non conveniens, arguing that Mexico was a far more convenient forum for the litigation under the precedent of Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996). Applying Kinney System, Inc., the trial court declined to disturb the plaintiff's choice of forum and denied the motion. The Third District Court of Appeal reversed the decision, however. Writing for the appellate court, Judge Kevin Emas ruled that the trial court abused its discretion by deciding that private and public interests weighed in favor of a Florida forum. The trial court based its findings on affidavits, not live testimony, in a case in which the "only connection to Florida is that plaintiff's counsel is situated here and maintains in his office documents from other cases which they intend to use to establish liability in this case." In fact, the accident occurred in Mexico; the accident involved a helicopter and engine that were never in Florida, but were manufactured, designed, and assembled either in Canada or outside Florida; the accident was investigated by the Mexican Civil Aviation Authority, which would prepare an investigative report that "undoubtedly will be written in Spanish"; the helicopter's maintenance records, and the traffic control authority records were in Spanish; the plaintiffs' medical records were in Spanish; and the plaintiff's families and damages witnesses were located in Mexico. Consequently, jurisdiction was not possible over a case brought by foreign plaintiffs who have no connection to Florida, and there is "[n]othing in [the Florida] Constitution [that] compels the taxpayers to spend their money even for the rankest forum shopping by out-of-state interests."
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Mechanics and Charging Liens U.S. Acquisition, LLC v. Tabas, Freedman, Soloff, Miller & Brown, P.A. 87 So. 3d 1229 (Fla. 4th DCA 2012) A lender sought a writ of replevin after its borrower defaulted on a multi-million dollar promissory note secured by an aircraft as collateral. After the writ issued, the lender was taken over by the Federal Deposit Insurance Corporation and the loan was ultimately sold to US Acquisition, LLC ("US Acquisition"). The lender's lawyers then filed a charging lien for $56,425.21 and withdrew as counsel. They did not record the lien with the Federal Aviation Administration ("FAA"), however, and in a case of first impression, US Acquisition argued that the attorney's charging lien was not perfected and invalid. Florida's Fourth District Court of Appeal acknowledged that timely notice is the only requirement to perfect a charging lien under Florida law, but that the attorneys' charging lien was not typical in that it would attach both to a monetary judgment and the actual aircraft and/or its parts. Thus, it should have been recorded with the FAA pursuant to 49 U.S.C. 44108(a), to protect any third parties from subsequently purchasing an interest in an aircraft which inaccurately appeared to have free and clear title. Indeed, US Acquisition purchased the loan secured by the aircraft without actual or constructive notice of the attorney's charging lienthe precise situation that recordation would prevent by shifting responsibility to the transferee to diligently search the FAA's registry before obtaining an interest in the aircraft. Thus, the attorney's lien was unperfected. Personal JurisdictionFlorida Long-Arm Statute via the Internet VAS Aero Services, LLC v. Arroyo --- F. Supp. 2d ----, 2012 WL 2359657 (S.D. Fla. 2012) VAS Aero Services, LLC ("VAS"), a Delaware company headquartered in Boca Raton, Florida, brought suit in federal district court in West Palm Beach, against a former employee for damages and injunctive relief for misappropriation of trade secrets, breach of the duty of loyalty, and conversion. VAS's military and defense sourcing director allegedly removed and downloaded confidential and proprietary and trade secret information from a facility in Kent, Washington shortly before he left to work for one of VAS's biggest competitors, GA Telesis, LLC.

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The ex-employee, a resident of Washington state, argued the court lacked personal jurisdiction over him under Florida's long-arm statute (Fla. Stat. 48.193) because all of his alleged actions took place outside Florida, or alternatively, that exercising personal jurisdiction over him would offend the due process clause. United States District Judge Donald M. Middlebrooks ruled otherwise, determining that (1) the complaint sufficiently pled the ex-employee appropriated materials and information that would allow VAS's competitors to outbid it on current and future projects to strip and sell excess aircrafts and parts, and (2) the assertion of personal jurisdiction would not violate due process. First, Judge Middlebrooks concluded that, except for documents removed from Washington state, VAS's ex-employee effected his alleged misappropriations via the internet. While the Supreme Court of Florida has not ruled whether the state long-arm statute applies to internet activity, jurisdiction over the ex-employee was appropriate under a "broad" federal construction of Fla. Stat. 48.193(1)(b), which confers jurisdiction over "[a]ny person, whether or not a citizen or resident of this state ... for any cause of action arising from ... [the commission of] a tortious act within this state." The ex-employee's alleged actions were intentionally directed at a Florida company, causing harm primarily, if not exclusively, in Florida. Additionally, Judge Middlebrooks ruled that VAS's ex-employee had sufficient minimum contacts with Florida because a single act, such as an intentional tort, could support personal jurisdiction over a non-resident who had no other contact with the forum. The concept of fair play and substantial justice was not offended given VAS's ex-employee of "almost thirty years ... would unquestionably be aware that any tortious conduct expressly aimed at VAS, a Florida-based company, would cause injury in Florida." Offers of Judgment Cirrus Design Corp. v. Sasso 95 So. 3d 308 (Fla. 4th DCA 2012) Cirrus Design Corporation ("Cirrus") was sued in two separate wrongful death actions and one personal injury action arising from a private aircraft crash. Cirrus served three plaintiffs with separate offers of judgment for $50,000 each, pursuant to Fla. Stat. 768.69. The offers required Cirrus to pay the settlement funds within twenty days of acceptance. The last of the three offers was accepted in September, 2009, yet Cirrus did not make payment until March, 2010.
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In the interim, the plaintiffs negotiated with Cirrus about the wording of alternative releases, but eventually objected to signing any more releases because the terms of the offers of judgment were sufficient to release any further claims. The plaintiffs also refused the checks by Cirrus because payment was untimely. Cirrus moved to enforce the settlements; the trial court denied the motion on the basis that offers of judgment must be strictly construed and the failure to make payment within twenty days precluded enforcement of the settlement agreements. Cirrus appealed. Florida's Fourth District Court of Appeal reversed, framing the issue before it as "whether the acceptance, not the performance, of the offers of judgment constituted an accord and satisfaction of tort claims." The appellate court agreed with Cirrus that (1) the offers themselves stated unambiguously that acceptance constituted satisfaction of all claims, and (2) the presumption of an immediate satisfaction of the tort claim applied because the offers of judgment were intended to settle an unliquidated claim for a liquidated amount. In dissent, Judge Mark E. Polen agreed that the law of contracts, not offers of judgments, controlled whether there was an enforceable settlement. However, the plaintiffs intended to settle their wrongful death and personal injury claims for one thing: the payment of money "within twenty days of acceptance, NOT 152 days later! Under the majority's analysis, once the plaintiffs accepted, Cirrus could have taken 1,520 days, or perhaps 15,200 days to pay. I think the trial court was correct to deny enforcement."

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V. Regulatory Law
Airman Medical CertificationPrivacy Act Violation Fed. Aviation Admin. v. Cooper 132 S. Ct. 1441 (2012) Federal Aviation Administration ("FAA") flight surgeons learned that a private pilot renewed his medical certificate under 14 C.F.R. 61.3 by intentionally withholding information about a disqualifying condition (i.e., HIV) he had and medication he was taking. Yet, he had disclosed these same facts to the Social Security Administration ("SSA") to obtain long-term disability benefits. The pilot's inconsistent disclosures were exposed as part of the Department of Transportation's ("DOT") joint criminal investigation with the SSA"Operation Safe Pilot"to identify medically unfit individuals who had obtained FAA certifications to fly. The private pilot admitted his fraudulent omissions when confronted by investigators and ultimately pled guilty to an indictment of making false statements to a government agency in violation of 18 U.S.C. 1001. His pilot's certificate was revoked and he was sentenced to two years of probation and fined $1,000. Notwithstanding this, the pilot brought a federal lawsuit against the FAA, DOT, and SSA, alleging violations of the Privacy Act of 1974, 5 U.S.C. 552a, by sharing his confidential records and causing him "humiliation, embarrassment, mental anguish, and other severe emotional distress." Justice Samuel A. Alito, writing for the Supreme Court of the Untied States, ruled that the Privacy Act of 1974 neither "unequivocally authorize[s] an award of damages for mental or emotional distress" nor "waive[s] the Federal Government's sovereign immunity from liability for such harms." Justice Elena Kagan took no part in the consideration of the case while Justice Sonia Sotomayor filed a dissent, forecasting that "[a]fter today, no matter how debilitating and substantial the resulting mental anguish, an individual harmed by a federal agency's intentional or willful violation of the Privacy Act will be left without a remedy unless he or she is able to prove pecuniary harm."

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ReinsuranceExtrinsic Evidence KILN PLC v. Advantage General Ins. Co., Ltd. 80 So. 3d 429 (Fla. 4th DCA 2012) An insurer paid $600,000 to the families of two passengers who died in an aircraft crash. The insurer sought reimbursement from its reinsurer pursuant to a policy for claims paid for the death or injury of an airline "passenger" in the amount of "US$300,000 any one person as original not exceeding 10x annual salary." The reinsurer refused reimbursement on the basis the operative policy language covered only employed passengers and excluded unemployed passengers. The insured sued for declaratory relief that the policy provided coverage for the loss sustained and money damages for breach of contract. The trial court found that the disputed language was ambiguous and construed it against the reinsurer (as drafter) and in favor of providing coverage. Florida's Fourth District Court of Appeal agreed that the insurance contract was ambiguous, but reversed the trial court's decision. The appellate court noted that the ambiguity at issue did not simply lie in the disputed language, but in the fact it completely failed to address treatment of unemployed passengers, made no explicit exclusion of them, and, instead, stated that "passengers of aircraft" are, in fact, "insured persons." There also existed a factual dispute as to which party chose the language of the policy. Thus, the trial court was directed to have the parties submit extrinsic evidence on what, if any, coverage was to be provided to unemployed persons. Also remanded was the issue of what role an insurance broker played in the drafting of the policy and whether his knowledge and understanding of the policy could be imputed to the insurer as its agent (given the general proposition that an insurance broker is treated as an agent of the insured).

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VI. Space Law

Reciprocal Waiver of Claims Agreement with Customers 77 Fed. Reg. 63221-01 (2012) Pursuant to 14 C.F.R. 440.17, Space Exploration Technologies Corp. ("SpaceX") is required to execute reciprocal waiver of claims ("cross-waivers") with each of its customers in connection with the flight of its Falcon 9 launch vehicle to the International Space Station ("ISS"). In addition to delivering other supplies to the ISS, SpaceX agreed to carry a locker insert by NanoRacks, LLC ("NanoRacks") and student experiments created under the Student Spaceflight Experiments Program ("SSEP") arranged by the National Aeronautics and Space Administration ("NASA"). Under 14. C.F.R. 440.3, NanoRacks and each student who places a payload on board the locker insert qualify as a customer according to the Federal Aviation Administration ("FAA"). Thus, SpaceX petitioned the FAA's Office of Commercial Space Transportation for a partial waiver of the requirement for signed waivers by NanoRacks and each student. The FAA granted the petition pursuant to the Commercial Space Launch Act of 1984. See 51 U.S.C. 50905(b)(3). See also 14 C.F.R. 404.5(b). The FAA determined that another agreement, a NASA cross-waiver signed by NanoRacks, was consistent with the comprehensive financial responsibility and risk sharing scheme designed by Congress to protect launch participants and the U.S. Government from catastrophic loss and litigation and to relieve launch participants of the burden of obtaining property insurance by having each party be responsible for the loss of its own property. Additionally, the waiver implicated no safety, national security, or foreign policy issues and it was unnecessary for NanoRacks and the SSEP participants to sign a cross-waiver under 14 C.F.R. Pt. 440 because relevant employees would not be present at the launch site. Explosive Siting Requirements 77 Fed. Reg. 55108 (2012) Effective November 6, 2012, the Federal Aviation Administration ("FAA") issued a final rule amending and updating Part 420 of Title 14 of the Code of Federal Regulations establishing minimum quantity-distance ("Q-D") criteria for distancing the public from solid propellants, energetic liquids, or other explosives used to prepare launch vehicles and payloads for flight.
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Exclusion of Tethered Launches from Launching Requirements 77 Fed. Reg. 50956 (2012) The Federal Aviation Administration ("FAA") invited comment to a notice of proposed rulemaking that would amend two sections of 14 C.F.R. Pt. 400 governing licensing and permitting requirements for commercial space launches. First, the FAA would revise 14 C.F.R. 401.5 by defining "tether system," including as a device that would contain launch vehicle hazards by physically constraining a launch vehicle in flight to a specified range from its launch point. The FAA also proposed to revise 14 C.F.R. 400.2 to add requirements for launch vehicle and tether systems, as well as separation distances from the public for tethered launch operations. Space Junk International Code of Conduct for Outer Space Activities The Untied States reached a decision to formally work with the European Union and space faring nations to develop and advance an "International Code of Conduct for Outer Space Activities." The proposed code would be applicable to all outer space activities conducted by states or non-governmental entities, and would lay down the basic rules to be observed by space faring nations in both civil and defense space activities.

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Timothy M. Ravich is a Martindale-Hubbell AV-rated business and commercial litigator who has been recognized as a "Leading Lawyer" by the South Florida Legal Guide and named among the top five percent of attorneys in Florida as a "Super Lawyer." Mr. Ravich also is one of only thirty-four lawyers recognized as a "Florida Bar Board Certified Aviation Lawyer." He chaired the Florida Bar Aviation Law Committee from 2010-2012, and is an adjunct professor teaching aviation law at the University of Miami School of Law and Florida International University's College of Law. He earned his M.B.A. in Aviation Policy and Planning from Embry-Riddle Aeronautical University. In addition to publishing a course book, AVIATION LAW AFTER SEPTEMBER 11TH (Vandeplas 2010), Mr. Ravich has been a regular commentator for local, national, and international media programming featuring aviation and aerospace issues, including National Public Radio, NBC Universal, and China Central Television. He also has written extensively about aviation issues in peer-reviewed journals, including the American Bar Association Section of LitigationMass Torts, Southern Methodist University's Journal of Air Law and Commerce, the North Dakota Law Review, the Florida Bar Journal, the University of Miami Law Review, and the Journal of the Transportation Research Forum.

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