What Legal Guidance Is Available for International Carriers Dealing with Part 129 Litigation?

An international carrier operating in the United States must abide by a number of legal codes pertaining to foreign companies that carry passengers or cargo in the US or operate US-registered aircraft outside of the country. International carriers who want to operate commercially in the US must obtain at least two kinds of clearance to do so—first from the Department of Transportation (DOT) and again from the FAA under Part 129.

The DOT provides economic authority for the carrier to operate, following an application “that provides information about, among other things, the ownership and the management personnel of the airline, its financial condition, its operating plan, and the ability of the company and its personnel to comply with laws and regulations.” However, the FAA provides safety authority for the carrier.

Part 129 is intended to ensure that every foreign carrier operating in the US abides by a set of safety standards equivalent to those that the FAA enforces for domestic aircraft. To qualify under Part 129 for operations within the US, a carrier must come from a country that has received “a rating of 1 by the FAA’s International Aviation Safety Assessment (IASA) program.” This measures the country’s compliance with the standards of the International Civil Aviation Organization (ICAO). As of this writing, 82 countries have been evaluated and 76 are rated 1.

Under Part 129, a carrier must apply at least 90 days before it begins its business in the US by sending a Letter of Intent to the proper International Field Office. When its application is approved, the FAA issues operation specifications (OpSpecs), a personalized set of maintenance and safety requirements by which the carrier must abide. The OpSpecs for a foreign carrier include guidance and limitations on how it may operate its aircraft in the US.

Legal Compliance Issues

OpSpecs are exhaustive, and some requirements apply across the board to all foreign carriers. These include mandates for:

Approved collision avoidance systems as described in 14 CFR § 129.18
English-speaking personnel who can communicate with ATC (§ 129.21)
Cockpit doors of specified strength to resist intruders or gunshots, as per § 129.28

The regulations specify maintenance update requirements for aircraft by age, usage, and model in order to ensure that planes do not suffer overuse or poorly implemented systems. Part 129 carriers must also implement the security program requirements of 49 CFR 1570, under review by TSA.

As regulations, publications, and airworthiness directives are frequently updated, compliance is often difficult to maintain without guidance. The FAA can subject businesses that violate regulations to civil penalties of thousands of dollars, sometimes once for each day of a violation. They may also elect to suspend or revoke a certificate, with disastrous monetary and reputational consequences for the personnel involved and the entire company. Certain offenses, such as knowingly employing pilots without valid airman’s certificates, even carry criminal penalties.

Civil penalty cases are held in administrative court, presided over by specialist administrative law judges (ALJs). However, experienced counsel can assist a company to reach an informal settlement with the agency before hearings become necessary.

Suits by Passengers

If a US passenger sues a foreign airline for injury or loss of cargo, they will almost certainly try to do so in a US court. Currently, 137 countries are signatories to the Montreal Convention, which outlines how and where a passenger or cargo owner can recover against an airline. According to the Montreal Convention, a passenger who suffered injury has the right to claim compensation from an airline in a US court if that passenger:

had their “principal and permanent residence” in the US at the time of the incident, and
the airline had flights to or from the US, or
the airline had a commercial agreement with a partner to provide such flights.

Moreover, if a passenger’s family sues for wrongful death, they are likely to choose the US as a jurisdiction if at all possible, as US law observes a wider scope of compensation for wrongful death than some other nations.

What You Can Do

A foreign carrier should engage US aviation counsel as soon as they seriously investigate the possibility of operating under Part 129. Our firm can guide you through the entire process, which includes assembling an initial application for the FAA and requesting economic authority from the DOT. Furthermore, we can advise on other federal and state laws and tax regimes that will impact your particular business.