Metropolitan News-Enterprise


Friday, April 11, 2008


Page 1


Court Rejects Suit Over Plane Crash That Killed Balkan Leader




A federal statute of repose limiting the time in which tort suits may be brought against aircraft manufacturers applies to accidents occurring outside the United States, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed a summary judgment in favor of Raytheon Aircraft Company in a suit brought by the families of nine people killed in the crash of a Beech Super King Air 200 Aircraft in rainy, foggy weather near Mostar, Bosnia and Herzogovina in February 2004.

Killed were Boris Trajkovski, the 47-year-old president of Macedonia, and eight other persons, including the pilots. The president and his group were en route to an economic conference.

While there was speculation at the time that the crash might be related to ethnic tensions in the region, the Bosnian government concluded that the cause was pilot error.

The families alleged in their complaint, filed in the Northern District of California, that Raytheon was liable under Macedonian law because the plane was defective and not crashworthy. But U.S. District Judge Phyllis Hamilton concluded that the action was barred by the General Aviation Revitalization Act of 1994, sometimes called GARA.

GARA provides, among other things, that no action may be maintained in any state or federal court for tort damages resulting from a general aviation accident more than 18 years after the aircraft was delivered to the original purchaser.

Evidence presented in connection with the summary judgment motion showed that the King Air 200 was manufactured in Kansas in 1980, sold to an affiliated company in Europe, and then delivered to the Macedonian government—which owned it up to the time of the crash—in April 1980.

Plane Age Undisputed

The plaintiffs did not dispute that the plane was more than 18 years old, but argued that the statute of repose does not apply to accidents occurring outside the United States because there was no clear indication that Congress intended the act to apply extraterritorially.

But Senior Judge Dorothy W. Nelson, writing yesterday for the Ninth Circuit, said the “presumption against extraterritoriality” does not apply to GARA because the statute does not govern conduct occurring beyond the borders of the United States.

She explained:

“GARA only regulates the ability of a party to seek compensation from general aviation airplane manufacturers in American courts....It is not a statute governing the substantive standards involved in tort claims. GARA merely eliminates the power of any party to bring a suit for damages against a general aviation aircraft manufacturer, in a U.S. federal or state court, after the limitation period. The only conduct it could arguably be said to regulate is the ability of a party to initiate an action for damages against a manufacturer in American courts — an entirely domestic endeavor.”

Nothing in the statute, Nelson added, purports to prohibit plaintiffs barred by GARA from suing in the United States from seeking redress in the courts of other countries.

Application of NEPA

The judge cited Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993), in which the court held that a federal agency’s decision to permit the incineration of food waste in Antarctica was subject to the National Environmental Policy Act. Rejecting the argument that NEPA did not apply because the incineration would occur outside the United States, the court said that the presumption against extraterritoriality was irrelevant because it was the decisionmaking process, which occurred in the United States, that was being challenged.

Nelson went on to note that several published opinions, including one from the California Court of Appeal, have applied GARA to foreign accidents, although only one, from the U.S. District Court for the Southern District of Texas, considered the presumption of extraterritoriality.

In contrast, she wrote, all of the cases that have applied the presumption in order to hold federal statutes inapplicable have involved laws which, unlike GARA, would have regulated specific conduct occurring abroad, had the presumption not been applied.

Judge Michael Daly Hawkins and Senior U.S. District Judge Robert Timlin of the Central District of California, sitting by designation, concurred in Nelson’s opinion.

The case is Blazevska v. Raytheon Aircraft Company, 06-16028.


Copyright 2008, Metropolitan News Company