Cleared for Takeoff: Navigating Aviation Law in 2025

Episode Notes

Transcript

Rocky Dhir:

Hi, and welcome to the State Bar of Texas Podcast. I’m old enough to remember air travel in the 1970s and 1980s. Those were the days of passengers dressing up a bit, getting free drinks and snacks. Some of you might remember that and wait for it. Even a full meal with actual silverware on plates. Back then you could pick up someone at the airport from their gate because everyone was allowed past security. Granted, tickets were comparatively expensive, but then came the time when ticket prices sort of started to come down. Service waned a bit, but air travel was pretty nice. Value for a while. Think the 1990s, early two thousands now. Well, we all know the drill. It’s expensive. You get literally nothing except a non reclining seat and you better wear crocs because you will be removing them possibly several times, even when people don’t want you removing them.

Oh, and the food is overpriced and in a paper box so that no one on board makes a shank and tries to escape midair. We all know what it is and we all hate it, but so much has changed in our interaction with aviation. What about the law behind aviation? How has it changed? Has it even changed? And what do lawyers need to know about this new world of drones and AI and the ever developing world of private space flight? So many questions. So many. You might say sky’s the limit. Okay, look, I thought that was funny when I came up with it and if you’re not laughing, then that’s on you. Alright, so look to help us answer some of these questions, I asked Kent Kraus to join us. Kent was one of the first Texas lawyers to be board certified in, as you guessed at Aviation law.

He’s a member of KRA Davis and Kraus in Dallas. He has decades of experience representing plaintiffs and defendants. Not in the same lawsuit, of course in aviation litigation. He’s worked on transactional aviation matters and some of his especially notable cases involve the Christie Brinkley helicopter crash in Telluride, Colorado. Some of y’all might remember that. Or the Stevie Ray Vaughan helicopter crash in Wisconsin. Then there was that catastrophic engine failure of Southwest flight 1380. You get the idea. He’s done a lot of aviation law, he’s seen it all. So maybe he can help give us a glimpse into this aspect of the law. So Kent, welcome aboard. Well, thank you Rocky for having me. Absolutely. I’m going to keep putting in these little airline references. I never get to do this normally. So there’s going to be all of these. I hope you’re sitting upright.

Kent Krause:

I am at this point. I’ve locked the tray table and everything, so we’re all good.

Rocky Dhir:

You have an office chair with the tray table. Okay, I need to get into aviation law. This sounds a lot more fun than my office set up. So I know nothing about aviation law, very little. So I’m going to start with some basics. I think there may be others out there like me. So what statutes and regulations do most aviation lawyers rely on? Is there like a body of law that helps form your world?

Kent Krause:

Yeah, that’s a great question to start with, it’s a very broad, there’s federal statutes, primarily the federal government decided years and years and years ago that it was going to take control of the air. And back in when I took property law as a first year law student and they talked about the feast, simple ownership of land and described as zoning from the bowels of the earth to the heavens above. Well, you may still get to the bowels of the earth, but the heavens above have been supplanted by the federal government saying that over a certain so many feet above ground, they’re going to dictate and control what happens.

Rocky Dhir:

How many feet is that by the way? Above ground?

Kent Krause:

It varies location, but depending on look, but let’s say 500 feet in essence is sort of free, maybe still controlled by state or you or putting an office, building up, things like that. There are variances to that. But really once you get past that, for the most part they do that. And a good example, going back from a law standpoint, you could argue, let’s say you have a big ranch in West Texas and all the planes flying from Dallas to LA fly over your ranch. If you own to the heavens above, you could send those airlines a bill for trespass or a toll if you’ll for traveling over the top of your property. So that’s part of the reason for that federal intervention in that regard. And so it has controlled, and so there’s a plethora of federal statutes as well as a lot of regulations promulgated by the FAA that dictate that.

And I think you look at that and then the case law that’s developed over the years, either in the litigation area particularly, but also some transactional aspects. And then there’s some other administrative laws that deal with the registration of aircraft. For example, you own your car, you get a license in the state in which you reside typically, right? With respect to an airplane, while you may keep your airplane here in Texas, you have to go through a federal registration. There’s no Texas registration for your aircraft. And so that’s another area that’s governed by the federal government and how they deal with aircraft.

Rocky Dhir:

So this kind of brings up an interesting jurisdictional question because a lot of these airlines, it might be a US-based air carrier that’s now flying overseas and going to another country. So what’s that interplay between US law versus another country’s law versus maybe a body of international law? Do we have that sort of, I guess trichotomy if you will?

Kent Krause:

Another great question. And that lends to why this area is sort of specialized. There are two types of treaties, really international treaties that the United States is engaged in. The some are multi-party. And the main one that you might hear about and you can see it when you buy a ticket is the Montreal Convention. Now mostly it was originally the Warsaw Convention, which was a fancy word for a big meeting of different nations to come up with an agreement on how to deal with international travel. And so that governs the rights of you as passenger on an airliner. And if something happens in that regard as you fly internationally, or at least if your ticket is categorized as international, it gets a little technical in that regard. Then separate from that United States and each country negotiates a treaty with these other, with each other and says, okay, here I will allow your planes to fly and land in my country and pick up passengers and take them back to your country or whatever.

So there’s those two groups and that’s governed by in theory that Chicago convention, which happened in the 19 hundreds or middle 19 hundreds and sort of dealt with, now how do we get those rights? And so a lot of times for example, if you see here in Texas, Houston certainly has a lot of international flights, Dallas does to San Antonio, Austin. Those flights are governed by whether or not the United States has a treaty with for example Mexico or now really the European Union to go overseas that way or going to South America to Argentina or Brazil or any of the place like that. And so that’s how all that’s governed and determines whether or not one, they have the right to fly there and what is it they get to do. Exactly. And those are actually called freedoms of the air. And so that’s what they use those to determine that

Rocky Dhir:

That explains in the movie Argo, those that watched it, it about it took place during the Iran hostage crisis of 19 79, 19 80 in that one, the main character who is the U-S-C-I-A operative, he had to fly into Iran, but he had to fly using British Airways and he had to fly out using Swiss air. And I guess it was because there was no treaty or I guess the treaty had been abrogated by one party or the other. And so the US and Iran were not able to fly into each other’s airspace, I suppose.

Kent Krause:

Yeah, that’s a good example. Exactly. So that’s the idea. And you also look at restriction, for example, American Airlines will have the right say to fly to London, but they can’t then pick up passengers in London and fly them to Aberdeen or somewhere else in the uk. And same thing on that one way into the country, one way out. And same thing with British Airways. British Airways can’t fly to New York and then also operate New York to Florida, New York to Texas, New York to whatever as constants also. So there’s some of those kinds of restrictions. So yes, and it’s very regulated. And again, typically what happens in those situations is you have people with the department of State along with representatives of the airlines, go in and negotiate the rights and these landing rights and that sort of thing. Heathrow, if you’ve ever heard or anybody’s flown, much has always been one that has always been competitive in a fight over who gets the right to fly to Heathrow obviously. So American Airlines for example, I know has people in their legal department who that’s their job really. They specialize on Heathrow, specialize on that. So they’re more treaty lawyers than they are aviation lawyers per se, but that’s dealing with treaties related to the right to flight and do that. So there’s a lot of that specificity in those kinds of rules

Rocky Dhir:

And regulations. So this actually brings up maybe a question of the scope of aviation law, which we haven’t talked about much. We’ve talked about the body of law that governs it, but most people, myself included, we think of aviation lawyers in the context of crashes. Very unfortunate situation, particularly airplane crashes. Can you tell us a bit more about the various types of cases and matters that aviation lawyers would handle?

Kent Krause:

It is much broader than that. And as an example, I actually have taught for a number of years at SMU in the law school and I teach in what I would really call an introductory aviation law course. There I start with what I would say administrative law. If you really going back, if we look at the basics you learn in law, school of torts, contracts, maybe administrative type things, all those sorts of things, then it’s tweaked if you will, by the application to aviation in particular. So when you say administrative, you mean like FA? Yeah, FA is a perfect example of an administrative body that’s been created by the Congress and you have to then how they implement rules to govern primarily safety. So what are the rules that affect how airplanes are made and designed? What are the pilot’s rights and regulations as to how they have to be qualified, all those sorts of things. So the FAA is the one that decided why seats

Rocky Dhir:

Are so uncomfortable and now I know who to

Kent Krause:

Blame. No, they allowed it, let’s put it that way. The people that decided were the accountants at the airlines to be honest with you, but the FAA did allow them to do that. So yeah, you can blame both. I guess

Rocky Dhir:

We should make them fly in their own planes basically here comes sit here for six hours.

Kent Krause:

Exactly. That’s right. So that’s why they’re trying to push you to the front of the plane, pay that extra

Rocky Dhir:

Money. Oh yeah, no, hey, that big seat on Spirit Airlines, it can be worth it sometimes. It absolutely can be. It sometimes pays for itself when they charge you extra for the seatbelt, you need to be worried. At least it won’t bother me to put it back on. So I guess there’s that, this sounds like it can get complicated certainly for lawyers.

Kent Krause:

Yeah, because I think you got to look, one, you can look at the administrative law aspects of the regulatory complex of it and then do that. And then you can look at tort law with respect to the crashes or things like that. You have contract law, which may govern even your rights under crash or lost luggage, for example. If you look at the deal, it says how much you can get no matter what you think is in your bags and how much they’re worth. And then you look at transactional type law as well, which relates to, and then there’s very specific aspects of it. As I said before, how do you buy and sell an airplane? How do you deal with that and how is it registered and all that. So it’s kind of a very specific narrow band of lot of different kind of underlying areas of the law that exist. I wish

Rocky Dhir:

I had the problem of having to buy an airplane. They don’t pay me enough on this podcast to buy an airplane. Let’s put it that way. So if you’re litigating an airline case, how do you take something like this body of law and make it accessible to a jury that probably doesn’t know much about aviation law? I mean, how do you parse that down for them and make it bite-sized?

Kent Krause:

Well, I think in that context, that’s not dissimilar to a lot of areas of law at this point, which is you need good experts and expert witnesses who can take the information. One thing to know, and this ties into another aspect, is as opposed to a car wreck or something where everybody can go over and drive over real fast and kind of see what’s going on and try to do that when an airplane crashes it typically the NTSB, the National Transportation Safety Board takes control and has police power if you will, to secure a location and all the wreckage and everything else. And if there’s deaths, the bodies and so on, and they do their preliminary type of investigation. And so you’re limited, you really can’t get access to that, but you rely on the NTSB to come up with the factual information that you will then need to be able to figure what is your theory of what caused a crash.

And then you use that information from the NTSB to then apply to an expert in certain areas of quality, the design of an airplane or the performance of an airplane or how it’s piloted or whatever. There’s a lot of that aspect and you try to then boil it down in a way to make it presentable to a jury so that they do understand the issue and why you believe that somebody is at fault or was negligent in that context. And I will tell you that there’s a difference also between a claim with an airliner versus say somebody in a private plane, an airline is a common carrier on the legal terms, so that means they’re held to a higher duty of care than just the ordinary citizen driving his car down the street. I think that makes it more difficult for the airlines to defend themselves.

I mean because one of the things that’s changed in the last a hundred years certainly is a hundred years ago, if you got on an airplane, everybody knew you were assuming the risk of taking your life in your own hands because nobody thought they were too reliable. Fast forward to now, we expect that an air airliner will be able to operate safely and do their job and get you from point A to point B in a safe manner every day. And the failure to do that is almost presumptively somebody made a mistake on their end.

Rocky Dhir:

It’s kind of like ground transportation. It’s like taking the subway or taking the bus. They expect it to arrive on time and safely. Exactly. Wow. We need to talk more about this, but we’re going to take a quick break. We’re going to hear from one of our sponsors, so we kind of got the basics. Hopefully we’re all kind of on board. There’s a lot about aviation law. I didn’t know we’ve just learned it, but when you come back, we’re going to get into a little bit more detail and get into some actual aspects of aviation law. So sit tight, sit back and we’ll be back in just a few. Well folks, welcome back. We are here with Kent Kraus talking about aviation law. We got our quick basics and now let’s talk a little bit more about where the law is headed. So if aviation law is anything like other areas of law, almost every other area of law, the two big words that everybody keeps uttering are a i. It’s letters, it’s words, it’s whatever you want to be, but whether we want to or not, that’s becoming the big issue. So are aviation lawyers also talking about ai? And if so, how do you think AI is going to impact aviation law moving forward?

Kent Krause:

Aviation lawyers are talking about AI not only as I guess as lawyers themselves and using it somehow in your practice, but with respect to aviation, I think the area that two areas in essence that you’re seeing the most emphasis of that right now is in the context of drones or unmanned aerial systems is what the government likes to call them. And also in the context of similarly, there’s some companies that are developing right now, Ubers of the air, if you will. In fact, Uber was going to air taxi, air taxi in Dallas Air Taxi. So an air taxi context, kind of the George Jetson, you made earlier references. If you think about it, if you ever old enough to watched

Rocky Dhir:

George Jetson, oh heck yeah, that’s where I learned to type by the way, single finger typing, man, that’s the way we do it. That was the way to do it. Yeah,

Kent Krause:

Awesome. And those areas is where that aspect is really developing itself. I don’t think anybody at this point is comfortable with the idea that you would fly an airliner with passengers, at least a normal airliner on just an AI type of programming and do that. But

Rocky Dhir:

The autopilot on a plane isn’t the autopilot largely AI driven?

Kent Krause:

It is taking in data that’s being supplied and certainly there have been instances where the failure to feed the proper data has caused crashes of airplanes as a result of that. But I guess in the context of sort of really artificial intelligence, if you will, in other words being able to be sort of creative in what it’s doing and reading, I wouldn’t put that because really the typical with an autopilot is there’s input from the pilots themselves as to a setting of an altitude or whatever speeds and things like that that they would do in directional headings then takes information and follows that.

But if you’re thinking in it the terms of having either a drone or even this air taxi, which is going to have to maneuver itself intelligently around other buildings, around other air taxis and so on, then I think that’s where it gets in. And this not dissimilar to what they’re trying to do with automobiles right now. Tesla and others are trying to have sort of driverless vehicles. And so that to me is the main area where everybody’s trying to figure that out. And if you look at some of the big companies like Amazon and Google, particularly in the drone aspect, they are trying to really expand what’s allowed, presently allowed under the law and go that,

Rocky Dhir:

But this goes back at least to my untrained ear, it goes back to the issue of jurisdiction that we talked about earlier. I mean, if it’s really 500 feet, then could you theoretically operate air taxis as long as you’re 499 feet or lower and not fall within regulatory purview? Or is the law trying to evolve around that in some way?

Kent Krause:

That’s a great question. The law is trying to evolve around that and I think in some aspects it’s a little unclear. And we also depend on the location to be honest with you. So there’s a lot of variables in that right now we do have the issue of two groups of laws. There are federal laws, it’s under part 1 0 7 of the regulations which has been implemented that governs sort of what the federal rules have as to operations of drones. And those rules really are focused on safety, I would say primarily a safety aspect. Then what you have is a whole lot of other rules that have been enacted by the states, and so there’s no uniformity there obviously. And all 50 states have something else going on where the fas focus on airspace safety. The states are typically looking at more things like privacy and that aspect of it, public safety, property rights, and some of them environmental concerns.

And so as an example, I don’t know if you want to explore this, but Texas as well, California, Florida, several of them basically prohibit you using the drone to record into private spaces. And a good example under the Texas law, if you were standing in the street and somebody was in their front yard doing something improper, illegal or whatever, embarrassing, you could stand there with your phone and film them. But it is illegal in Texas too. If you did that same thing and flew your drone up 25 30 feet and did the same filming, actually that’s illegal in Texas

Rocky Dhir:

In either front or backyard,

Kent Krause:

Either front or backyard. Yeah,

Rocky Dhir:

Even though because front yard would technically be plain view,

Kent Krause:

They would, but because it’s in their property and on privacy, the difference is because of the use of the drone and the law’s not as clear. And I don’t think they tried to get into define. You could imagine hold the lawsuits I’m trying to find is that in my backyard or my side yard or whatever. So it doesn’t have that, but obviously the real goal of it is so that you’re not flying over your neighbor taking a picture of her sunbathing nude by her pool or something like that. And so it’s a privacy type of thing like that. So that’s very important aspect of it. But then you have other places like Colorado, Minnesota for example, have banned the use of drones to harass wildlife. So from an environmental or that standpoint, there’s others that have said, look, flights over schools, prisons, and certainly you can’t go fly over an army base or an Air force base or something like that obviously.

And so there’s a lot of aerial trespass laws in that regard. The other issue that I think is important to think about is there’s a variety. Every state’s a little different. Some don’t address it at all. Some do is the concept of trespass. So if you do at least still own your rights of your land, at least to 500 feet or whatever, somebody’s a hundred, 200 feet above running a drone over your property, what are your rights to do that? And so some states have basically taken put laws in force where you going to take legal action against somebody like that. Some states have actually allowed you to take and get the shotgun out and shoot it down if you will, kind of thing. And as if it’s over your property. That’s a justified homicide of the drone if you will.

Rocky Dhir:

What if they eventually develop private drones, the same type we see now that can fly, say 500 feet in the air, now you’re in federal space and now you have a camera or some kind of phone that can still record the neighbor doing whatever they’re doing, but now you’re technically above 500 feet. Is there any developments or any thoughts on that?

Kent Krause:

I would say that is the future, if you will. And that is there aren’t really actually, the laws that exist currently are very restrictive on things like line of sight. In other words, you have to be able to see the drone. Well, that doesn’t do somebody like Amazon any good or other people. And so they’ve sought exemptions for that and they’re trying to do that. So in that same context, you raise a perfect point, which is okay, if you’re going to go in and fly in federal airspace, you’ve got to register and comply with the federal law. But if the federal law doesn’t address privacy issues, then the question would be, well, okay, if I was here, am I able to enforce the state’s law if I was up in federal airspace and already beyond that? So that is an area that is actually right now is percolating greatly and needs to be addressed.

And so there’s a lot of discussion going on about how do we either, do we expand the scope of the federal regulations to address those privacy environmental issues and so on that we’ve described or how do you adapt those together? And that is all very new, the use of drones in that context. Even small drones that you may have personally, that you would fly at 300 feet, 400 feet, you’re supposed to register with the federal government regardless. But you’ll see ’em now. People use ’em, for example, in the real estate business to go up the side of, well, they do it to show a house. If you’re managing an office tower and you need to examine something from the outside, that’s a good use of it.

Rocky Dhir:

I’ve had my homeowner’s insurance come out after a hailstorm and they’ll send a drone up to go look at the roof damage. I’ve seen that happen too.

Kent Krause:

So that’s all in there. So you raised a great point, and that is that there needs to be more work done legislatively to somehow between the safety aspects that the federal government has typically addressed and the privacy type things that the states addressed, and somehow that needs to get merged. So it’s a lot clearer and cleaner for practitioners as well as the public itself to know what its rights are.

Rocky Dhir:

So if I’m hearing you correctly, what I’m hearing you say is that the state bar of Texas podcast is at the cutting edge of aviation law because folks, you heard it here first, we came up with the future. Yes, yes. That’s why you should subscribe.

Kent Krause:

Absolutely. That’s why I was

Rocky Dhir:

Happy to be here. This is great. We’re cutting new ground right here. Before we take another break, one question I wanted to ask you, this may not really have as much to do with the law, but really, I understand you’re a pilot as well, you’ve flown some fixed wing aircraft in your day.

Kent Krause:

I’m not current, so I’ll say I make that qualification, but I come from a family of aviators and I have flew when I was younger, but I don’t anymore.

Rocky Dhir:

So if I see you in the cockpit of an aircraft as I’m getting onto it, I need to run. You need to get off. Yeah, get off quickly. But as a pilot, how do you think we balance the role of technology in enhancing the pilot capability with the danger of substituting for the pilot’s capability and skill? I mean, is there a tipping point at which the pilot’s skill now starts to get supplanted and pilots become less competent because they’re too reliant on tools like ai? How do you know when you’ve reached that point and when we’ve taken it too far when it comes to trusting the machines versus trusting the people?

Kent Krause:

That’s a really good question as well. You’re on fire today, Rocky, asking these questions. So you’re a pro. They trained me well, they did train you well. Yeah. And yeah, that is a difficult line to determine, but it’s a valid one. And I think what the idea of being able to basically understand the basic concepts of flight, gravity, drag lift and thrust if you’ll or power, those four combination is what and how do you operate an airplane in a way to make it fly and stay in the air and then land it and do what you need to do? Somehow some of that is being lost. I think as we have become more technical. And if you look at, for example, even some of the airliners that are produced, particularly Airbus or what they call fly by wire. And so what that means is that rather than you being able to physically input to some of the flight surfaces by pushing hard on the yoke or pulling back on it, and as they used to say, you do so hard, you bend the airplane if you will.

But now that’s limited because you move a toggle switch perhaps, which is true in a fighter like an F 16 has. It’s like a video game. You have a little toggle switch on one side and your throttle on the other and all it sends a signal that then operates the flight surfaces themselves, but they’re limited by what is allowed to be done. So the hydraulics can only go so far because that’s what the computer says. And so as long as the computer’s working and everything’s feeding properly, as an example, I can think of, there was a crash of a Air France flight a number of years ago. It was flying, remember from South America to Paris. They crashed in the middle of the Atlantic. And one of the main theories after looking at it that they probably think is that there was a more senior pilot who was off the deck at that time.

There was two younger pilots who were probably mostly guys that maybe growing up primarily learned how to fly on using one of the video games simulator. Exactly. And they had an input, there was an informational input problem into the system, which then they couldn’t quite figure out how to just make the plane fly and it stalled which airplanes can stall with power. It’s kind of an odd, it’s different than what we think about in the car, but in other words, stalling means the air going over the wings is no longer sufficient in essence to sustain flight. They think that some of that inexperience on just how to basically fly a plane may have factored into that particular crash. And so that is something that I think we need to remain vigilant about is ensuring that at least at the basic aspect of flight training, that you know how to truly just fly a plane, go out in an old by winging type plane or something, or single wing small plane, it doesn’t have a whole lot of electronic stuff on it, and just know how to make it work in that so that then when you translate into these more complicated aircraft, you understand those sorts of flight dynamics that help you see if there’s an anomaly or something’s not right with what’s being read by the information coming in to the computer if you’re relying on this autopilot or some AI version of that in the future.

Rocky Dhir:

Well folks, for those of you that are on the ground or in your cars listening to this, you can be thankful you’re in your cars. And for those of you that happen to download this and listen to it on a plane, you need to go and cross examine the pilots right now. Ask them what they know and do they know how to make these planes fly without the ai. But in the meantime, we’ve got to take a quick break. We’re going to hear from another one of our sponsors when we come back. We’re going to get into a little bit of, we’re going to open up some maybe a little spicier discussion when it comes to aviation law. There’s nobody better to do it with than Kent Krause. So we’re going to be back with Kent in just a couple of minutes. We’ll see you soon.

Alright, we are back with Kent Kraus talking about aviation law. Man, this is, I got to admit, when we were talking aviation law, I thought, God, what are we going to talk about? And pardon the expression, the time is flying by. It’s pretty crazy. So early 2025 has seen a spate of air incidents. There’s been a number of them in the news. One of the most notable was being the American Airlines plane that collided with the Army helicopter over the Potomac in Washington dc. It seems like we’ve had a large number of these in a fairly amount of time. Are these incidents indicative of legal problem? Is the law needing to catch up with practice or are there some other factors in play in your opinion? When it comes to these very recent incidents?

Kent Krause:

I think that those incidents are more a function of just unfortunate circumstances and maybe some bad policies if you will, particularly the Washington DC crash. So from a pure legal standpoint, there are some aspects of that type of a case that would deal with, for example, being a claim against the government. And so there are statutes that address that concept specifically and all. But I think that in the instance in Washington for example, it seems clear at this point, we don’t have all the information yet, but it certainly appears that the helicopter was at the wrong altitude, maybe a hundred feet difference, which when you’re in the air, that’s not a lot of distance, but it was significant in this context. Certainly the fact though that there’s allowed to have that type of helicopter traffic, particularly going down the Potomac right in the middle of what is an established landing flight trajectory down to the runway, that in and of itself is probably an area of the law that needs to be addressed.

And they have done that, at least temporarily have suspended. I think those types of flights through there, that would be one aspect that could be dealt with through regulations, could be dealt with specific mandates made by the FAA and air traffic control in that regard. But also in this instance, you have to then coordinate that with the military and agree that they recognize and understand their restrictions in that context of civil airspace and all what they’re doing. So that area is a difficult area to negotiate and navigate through. There sound restrictions that exist if you go into Reagan, if you’ve ever flown in there, you sort of follow the Potomac River and it’s kind of an odd approach anyway, it looks like in that case, particularly that the American Airlines pilot was on his proper landing approach and coming in, right? What he should have been, to me, it certainly appeared like the helicopter deviated from where it should have gone and was at a wrong altitude. And that has that the one in Toronto that’ll be investigated by the Canadian version of the NTSD, again

Rocky Dhir:

Jurisdiction,

Kent Krause:

A jurisdictional question there, although, and that’s an international flight, so it was coming from under Delta’s livery, if you will, the way it’s painted, but it’s actually operated by one of their subsidiary type airlines. But again, it’s an international flight, so that’ll be governed by the Montreal or Warsaw Convention, I think Montreal because Canada’s adopted that and so has the us and so that’ll have certain rights on that. And then that probably there was a weather issue it looks like. And the landing itself was probably a little off whether that was impacted by the weather. And so the good news is that both the Canadian version n TSB as well as the NT sb, I mean their real function is not to determine fault per se. And like you would in a lawsuit, I’m going to blame you and you need, you’re the bad actor to figure out what causes, how did it happen and how do we improve that?

Rocky Dhir:

Cause probably goes into fault, but it’s not really a fault.

Kent Krause:

It does, but it’s not in the context of fault. It’s more of what could we have done operationally differently that would’ve improved and created a safer environment. That’s an ongoing aspect that always goes. And the truth of the matter is until then we’d had very little of that sort of event. And if you look at it from the standpoint, not that these commuter planes are great because they’re very high performing jets, which are great aircraft, and so I don’t want to do that, but there’s an old saying, it seems to happen in threes. And a lot of times there things, and I think there was also in that timeframe, if you remember the Learjet that left from Philadelphia with those medical people, it also crashed. And that one, I have no idea what exactly what was going on there, but unfortunately it seems like these things sort of happen in waves, whether that’s just the time has gone by, things have been good. And now withstanding that I will say, and go back to one of your comments earlier anyway, flying is a heck of a lot safer on an airline than it is driving your car down Interstate 35.

Rocky Dhir:

You’ve seen me driving, haven’t you, Ken?

Kent Krause:

Was that you? Okay,

Rocky Dhir:

That probably was

Most likely. I wonder as we talk about all this, for example, with the situation on the Potomac with the Army helicopter, you’ve got the military regulations and they’re moving doing whatever military maneuvers they’ve got to do, and then you’ve got the passenger jet following FA regulations as well as federal statutes, so on and so forth. Do you think we’re at a point now where we need some kind of a new regulatory framework? Do we need a more unified command and control structure over the air? Is this a harbinger of maybe needing to rethink all this?

Kent Krause:

That’s a great point, and I think that it certainly should be open to that discussion. I will say that there has been coordination from the standpoint that there are established. In fact, Texas has several of them established sort of military flying areas, but those are usually more rural and out where they’re training in doing that. And so you know that, and that’s well documented to civil. You can’t go fly over that or go send your drone to check out what’s going on, but that’s identified on the maps and the navigational charts that are used, if you will, and all that Id. So there is some coordination in that regard. But then when you have a situation like you have, certainly in Washington where you’ve got, I would almost argue that’s almost clandestine type activities going on that may or may not, somebody wants to acknowledge or allow to be heard.

And there probably does need to be examined better as to what that did and how that’s done because they’re supposed to identify themselves. And I think they did, and they knew, in fact, in the Washington situation, they were talking to the pilot asking, do you have this other plane in sight? But the fact that they’re in those close proximity is dangerous. But you raise a very good point. It seems to me that yes, there probably needs to be a further examination of that to try to determine if there isn’t a better way to coordinate the two, recognizing the one, the benefits to the civilian population in essence, to be able to fly and get where they need to go and weigh that against military strategic goals and national defense issues and how we do that. And so a lot of that exists anyway. If you went on the FAS website today, it’ll show you areas in the country that basically don’t allow you to fly over, and they call these notice to airmen type that notices that are out there.

An example of that is when there’s a cowboy game in Arlington, Texas there at the stadium, there’s a potential timeframe around that game time. And it’s a no fly zone in effect, unless you’re approved in a certain fashion and an airliner taking off out of DFW could go over there and be within that. That’s allowed if you’re a properly certificated and licensed banner, these guys that fly the banners around and up in the air around a stadium, so you can read and go buy milk at Joe’s grocery store or whatever, that kind of thing. Those might be licensed and allowed to do that, but you couldn’t just on your own say, Hey, I think I’m going to fly by there today and take a look and see what’s going on. And that exists certainly very extensively in the Washington DC area. The ranch where President Bush spent time down near Waco had its own, Crawford had its own area that was designated right around the house that was not allowed at all ever to fly anytime. And then when he was at the ranch, that expanded by a number of miles all the way out to Waco and all. And so you have a no fly. And I’ve actually been in a plane flying with somebody when somebody made a mistake of kind of crossing through there. The chatter on that is a little high. And then if the F sixteens come after you, you’re in big trouble. Time

Rocky Dhir:

To hightail it on out of that area. Get out of there. Yes, absolutely. We’re approaching the end of our time for this episode, but I did want to ask you one final question, and it might be the most important question of the day as an aviation lawyer, have we been visited by aliens? There’s all this talk about UFOs and unidentified aerial phenomenon. Is this a real thing?

Kent Krause:

I’m a big believer in the men in black movies, so who knows? Maybe so, but I don’t believe that’s occurred. But I think most of these instances that you hear and see about are somewhat unexplained, either weather balloons or other things that happen like that. But if the government releases all the papers and we see something different, I don’t know, but I don’t think that’s the case. So

Rocky Dhir:

Maybe it’ll be in those JFK files, we’ll find out about, yeah, that’s in, yes,

Kent Krause:

Yes. Instead of the area of 51 file, but you get the JFK, so

Rocky Dhir:

Maybe it was an alien that caused that. So absolutely. I was expecting the JFK files to tell us it truly, we’ve known for decades that it really is a terrible airport. But that’s good. Kent, I want to thank you for being here today and help us getting an on time arrival where we learned so much. Thank you so much. This has been a lot of

Kent Krause:

Fun. Well, thank you, Rocky. I appreciate you inviting me, and I’ve enjoyed speaking with you today.

Rocky Dhir:

Absolutely. And of course, guys, I want to thank you all for tuning in. I want to encourage you to stay safe, continue being well, and if you like what you heard today, please rate and review us in Apple Podcast, Google podcasts, or wherever you get your podcast. And until next time, remember, life’s a journey, folks. I’m Rocky Dhir, signing off for now.

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