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Tenth Circuit Holds that Personal Injury Claims on Domestic Flights are not Necessarily Preempted by the Airline Deregulation Act

On August 22, 2022, the United States Court of Appeals for the Tenth Circuit held that personal injury claims sustained by passengers on domestic flights, and specifically ones arising from a passenger being struck by a beverage cart, are not preempted by the Airline Deregulation Act (“ADA”).[1]  As frequent readers of this blog will recall, the ADA expressly preempts state laws (and thus common law claims) relating to a “price, route, or service of an air carrier.”[2]

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IMO Maritime Safety Committee Adopts Draft Amendments to Solas and New International Code of Safety

            The International Maritime Organization (“IMO”) Maritime Safety Committee (“MSC”) convened November 2 – 11, 2022, to consider important amendments to the Convention for the Safety of Life at Sea (“SOLAS”) concerning safety measures for industrial personnel and compliance with the minimum threshold flashpoint for fuel oil carried by ships.  In addition, the MSC adopted the new mandatory International Code of Safety for Ships Carrying Industrial Personnel (“IP Code”).[1]    

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Railroads: The Board Accepts Post-Remand Filings in CN/CP Interchange Dispute and Seeks Public Comments on the Legal Issues in the Proceeding

On October 19, 2022, the Surface Transportation Board (Board) issued a decision accepting the post-remand briefs and comments filed in a declaratory order proceeding involving Soo Line Railroad Company (CP) and Wisconsin Central, Ltd. (CN) and soliciting public comments regarding the broad legal issues presented by the proceeding.  Wisconsin Central, Ltd.—Pet. for Declaratory Order—Interchange with Soo Line R.R. Co., FD 36397 (STB served Oct. 19, 2022). 

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Railroads: The Board Announces Final Evidentiary Hearing Dates and Voting Conference in Gulf Coast Proceeding

On October 28, 2022, the Surface Transportation Board (Board) announced the final evidentiary hearing dates – November 17 and November 18, 2002 – for the March 16, 2021 application by the National Railroad Passenger Corporation (Amtrak) requesting an order that allowed additional Amtrak train operations over CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) lines along the Gulf Coast.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Oct. 28, 2022).  The Board also announced that it would hold a voting conference on December 7, 2022.  Id.

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Railroads: The Board Held Public Hearing in CP/KCS Merger Proceeding

On September 28, 2022, the Surface Transportation Board (Board) commenced a public hearing in the proposed Kansas City Southern (KCS) and Canadian Pacific (CP) merger proceeding.  See Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (STB served September 21, 2022).

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The National Labor Relations Act and Its Impact on Human Resources Policies

Practitioners in the modes are familiar with the role administrative agencies can alter the shape of compliance obligations through administrative decisions and rulemakings. The National Labor Relations Board (NLRB) is similar in most respects. One of these is the authority of the Board to assess part decisional practice and, in a decision, issued a new rule, as a case holding, without the necessity for formal rulemaking. The most well-known example is the case of John Deklewa & Sons, Inc. https://www.nlrb.gov/case/06-RC-012417 (creating a new test for when a collective bargaining agreement is revokable).

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Passenger Rail Update

This edition of the Passenger Rail Update highlights how the Surface Transportation Board (STB) has come to serve as an increasingly important venue for the National Railroad Passenger Corporation (“Amtrak”) to assert federal statutory rights and obligations aimed at improving intercity passenger rail service across the country. The shift can be seen in the STB’s establishment of a new Office of Passenger Rail and in Amtrak’s ongoing bid to restart its Gulf Coast service.

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Threats of Rail Labor Strike Curtail HazMat Shipments

The possibility of an imminent rail labor strike has created uncertainties for rail shippers and receivers, of course for the railroads themselves, this autumn.  Shippers of hazardous materials (HazMat) have been particularly affected by preemptive measures taken by carriers to limit their exposure to risks of HazMat being delayed in transit on the rail network.  These include curtailing shipments of chlorine and other HazMat, suspending freight train service, and repositioning locomotives, as reported by the Association of American Railroads and the online service advisories of various Class I railroads.

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U.S. District Court Denies Boeing Motion to Dismiss Fraud and Misrepresentation Claims Arising from the 737 MAX Grounding

U.S. District Court Denies Boeing Motion to Dismiss Fraud and Misrepresentation Claims Arising from the 737 MAX Grounding

On September 30, 2022, the U.S. District Court for the Western District of Washington issued an Order denying The Boeing Company’s (“Boeing”) motion to dismiss Polskie Linie Lotnicze LOT S.A.’s a/k/a LOT Polish Airlines (“LOT”) fraud and misrepresentation claims arising from the approximately two-year grounding of Boeing’s 737 MAX aircraft (the “Order”). The decision is significant because Boeing had previously succeeded in having fraud and misrepresentation claims brought by lessors and operators dismissed, notwithstanding the two fatal 737 MAX crashes, the grounding, Boeing’s Deferred Prosecution Agreement with the U.S. Department of Justice arising from Boeing’s misconduct during the Federal Aviation Administration’s certification of the MAX, the many other governmental investigations of Boeing’s misconduct, and Boeing’s settlement of shareholder, carrier, and lessor claims arising from the MAX grounding.

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Trucking Industry Group Seeks Exemption to Conduct Drug Screening Utilizing Hair Testing

The Federal Motor Carrier Safety Administration (FMCSA) has requested public comment on an application for exemption submitted by The Trucking Alliance that would allow trucking companies to use hair testing in addition to urine testing for random drug tests and pre-employment screenings. The exemption also asks that carriers be allowed to publish the results of those tests into the FMCSA’s Drug and Alcohol Clearinghouse, a database that employers must review when hiring a driver and annually during employment.

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