Cabotage and Deregulatory Anomalies

The strangest airline route in America is between Pago Pago and the Manu’a Islands in American Samoa. It is the only regularly scheduled service by a non-U.S.-flagged airline between two points in the United States (or its territories) due to the lack of a U.S. carrier offering service to the territory’s domestic route. Under existing U.S. cabotage policies, states and U.S. territories are divested of all power to manage interstate air transportation to and from other U.S. airports as a matter of law. Specifically, federal law permits only U.S. carriers operating U.S.-registered aircraft to fly between U.S. states and territories. Consequently, governments like that of American Samoa have no authority to allow non-U.S. carriers to fly in and out of American Samoa to key connection points to the United States, such as Honolulu or Los Angeles. Standing alone, the absence of foreign carriers in any particular aviation market is unproblematic and even expected where purely “domestic” travel is involved. But, in Ameri- can Samoa, the absence of foreign carriers means that competition and consumer choice are nonexistent. Meanwhile, presently, just one U.S.-flagged carrier—Hawaiian Airlines—connects American Samoa with any other part of the United States. In this monopolistic framework, few if any incentives exist for Hawaiian Airlines to provide more than the mini- mum acceptable level of service. And, in fact, in 2020, the Governor of American Samoa signed an Executive Order seemingly evicting Hawaiian Airlines from the territory while calling for permanent waiver of federal cabotage law—an action that the U.S. Department of Transportation (DOT) rejected as an authority not countenanced under the Airline Deregulation Act of 1978. This Article argues for a change or exemption in the current law. In so doing, this Article features the body of national aviation law as an unexpectedly useful area in which to gain insight into the flaws of imperial rule. With respect to American Samoa specifically, federal cabotage rules and laws deregulating the commercial airline industry displace territorial efforts to achieve autonomy and self-governance over matters of local concern and constitutional dimension, including jurisdiction (i.e., navigation), commerce and trade, and travel. Worse, national laws strip territorial leaders of the ability to better the welfare of their community without also meaningfully advancing U.S. objectives. Therefore, this Article argues that Congress should exempt American Samoa permanently from application of cabotage and deregulation laws and policies, a seemingly local issue that genuinely portends wholesale changes to longstanding international aviation law

Grounding Innovation: How Ex-Ante Prohibitions and Ex-Post Allowances Impede Commercial Drone Use

Unmanned aerial vehicles—”UAVs” or “drones”—are increasingly becoming a mainstream commercial phenomenon and tool for a vast range of commercial consumer, prosumer, and professional activities. Given advances in automation and miniaturization generally—and flight control stability and autopilot systems specifically—anyone can now fly in any airspace at any time by operating hand-held fixed-wing aircraft or quadcopters with little more than an ordinary smartphone or tablet. As such, sales of store-bought drones number in the millions, corresponding to the wide range of civil applications and value propositions that UAVs offer. Though civil drones are an attractive business investment, substantial regulatory headwinds confront the drone industry as startups endeavor to get to market and scale quickly. This is so notwithstanding—or perhaps even because of—the celebrated abilities of most small UAVs to fly boundlessly and collect and record information from nearly any vantage point. Drones are a classically disruptive technology of social, economic, and legal norms. Their operations raise novel and valid concerns in many of these areas, particularly in terms of safety and privacy. Consequently, regulators have responded—and they should. But federal, state, and local lawmakers alike have responded with policy interventions that are too often premature (or untimely) and overly rigid, discouraging the many beneficial uses of UAV technology. In fact, on the basis of ephemeral fears rather than data, regulators initially put in place overbroad and permission-based restraints that were tantamount to a de facto ban on all drone operations. This Article critiques the underlying thinking and approach that federal regulators have taken with respect to civil drones and argues that commercial UAVs should be a “permissionless innovation.” This Article posits that a better alternative to a top-down, ex-anteregulatory scheme is to broadly allow commercial UAVs and to deal with careless or reckless or nefarious operators and operations on a case-by-case, ex-postbasis. In doing so, this Article aims to present lessons learned in the context of commercial UAVs so that inefficiencies and paternalistic rulemaking can be avoided in the regulation of other innovations associated with the Internet of Things, including urban air mobility and electric vertical-takeoff-and-landing technologies—otherwise known as flying cars—that are just around the corner

Notice: Aircraft Lien Law in Florida

Establishing (e.g., perfecting) and enforcing a lien presents technical pitfalls and practical problems with which practitioners and courts are often unfamiliar or uncomfortable. After all, the law of liens requires an understanding of many different areas of the law, including the law of contract, bailment, unjust enrichment, and customary law. But among the most fraught with uncertainty are mechanic’s liens, which establish a right in favor of persons—“artisans”—performing or furnishing labor, services, fuel, or material upon personal property. Florida’s mechanic’s lien statute raises particularly challenging legal issues as applied to aircraft. In Florida, the perfection and enforcement of a mechanic’s lien as against an aircraft is rarely plain or intuitive. To get from lien perfection to lien foreclosure, aviation and commercial law practitioners must travel from Florida’s general mechanic’s lien statute through a mosaic of other state statutes, including a standalone chapter related to aviation. Along the way, equitable considerations, like the need for injunctive relief and the law of replevin and tort (e.g., conversion), likely come into play. Finally, lienors must satisfy an exacting federal statutory recording scheme and navigate a corresponding body of decisional law that raises thorny issues of federalism, priority, and preemption.The final tally: Perfection and enforcement of a mechanic’s lien in Florida requires the command of a minimum of four different Florida statutory chapters that rarely (and rarely clearly) cross-reference each other, several federal statutes that frequently have no obvious relationship to state lien law, and scattered decisional law rendered at every level of the judiciary. This is to say nothing of the international law regime governing the registration of airplanes and airplane parts or the likelihood that an aircraft may already be encumbered by the lien or priority mechanisms of another state or states. But the most problematic aspect of Florida’s statutory regime for mechanic’s liens, which is at the center of this Article, is the role possession plays in perfecting aircraft liens. Possession typically plays a decisive role in the area of lien law, animating the common law tenet that “possession is nine points of the law.” For more than a decade, however, Florida statutory law has presented an internally conflicted path toward lien perfection by also providing that possession is unnecessary. That is, under Florida law, a valid lien also could be created simply by recording a claim of lien. Recently, however, the Florida Legislature amended chapter 329, Florida Statutes, to clarify that possession is not required for lien perfection purposes; notice alone now suffices.This Article discusses the possession versus notice problem inherent in the state’s statutory scheme and then analyzes the recent change to the law. In doing so, this Article evaluates the advantages and disadvantages of Florida’s “new” mechanism for the perfection and enforcement of mechanic’s lien on aircraft, and argues in favor a statutory scheme that once and for all takes aircraft outside of Florida’s general mechanic’s lien statute, situating the subject of aircraft liens in a legal scheme that comprehensively provides for the perfection and enforcement of aircraft-specific artisan liens. Finally, this Article provides a comprehensive empirical review of the mechanic’s lien laws of every state in order to broadly contextualize how legislatures and courts around the nation approach the issue of perfection and notice for lien perfection purposes. In all, this Article’s relevance is greatest for aviation practitioners and courts adjudicating aviation liens in Florida and elsewhere, but it may also hold interest for a wider audience seeking to achieve efficiencies in the interpretation and application of commercial and secured transactions concerning personal property and mobile assets in analogous situations