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October 11, 1966

EASTERN AIR LINES, INC., Trans World Airlines, Inc., and United Air Lines, Inc., Defendants

Bartels, District Judge.

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

The Port of New York Authority, a citizen of New York, commenced this action in the Supreme Court of the State of New York against Eastern Air Lines, Inc. (Eastern), Trans World Airlines, Inc. (TWA), and United Air Lines, Inc. (United), seeking a permanent injunction against each defendant from violating certain agreements, rules and regulations adopted by Port Authority relative to the use by jet airplanes of runways 22 and 4 at LaGuardia Airport, upon the ground that the unauthorized use of said runways by the airlines constituted trespasses against Port Authority property, and that such trespasses should be enjoined.

 On August 25, 1966 a temporary restraining order was granted by the State court ex parte which, pursuant to a stipulation, has been extended against Eastern and TWA until November 15, 1966, after which date the whole question will become moot because the Port Authority has agreed to voluntarily discontinue the action against the defendants on November 16, 1966, and to permit the use by jets of said runways 4-22. United did not agree to the stipulation and on September 7, 1966 properly removed the case to this Court in compliance with 28 U.S.C.A. § 1441(c). Port Authority now moves, pursuant to Rule 65, Fed.Rules Civ.Proc., 28 U.S.C.A., for a preliminary injunction to restrain United from using jet airplanes to take off on said runway 22 or to land on runway 4. Predicated upon the pleadings, affidavits, arguments and briefs, the material facts appear to be as follows:

 Port Authority was created under compact between the States of New York and New Jersey, with the consent of the United States Congress, with full powers for the development and operation of terminal and transportation facilities in the Port of New York District, and pursuant to concurrent legislation supplemental thereto *fn1" was authorized to effectuate, maintain and operate air terminals within said district, including La Guardia Airport which it leased from the City of New York for a term beginning June 1, 1947 and ending December 31, 2015. Section 4 of said legislation provides that the Port Authority shall be regarded as performing an essential governmental function in connection with the maintenance and operation of its air terminals, and Section 10 of the same legislation provides that all details of the operation of the airports are within the sole discretion of the Port Authority and that its decisions in connection therewith are to be controlling and conclusive.

 On October 6, 1955, the Port Authority as operator of the airports, adopted a revised set of rules and regulations, including a rule prohibiting the use of any airport by jet aircraft without permission, *fn2" and another rule *fn3" providing that any permission granted by the Port Authority to an aircraft operator to enter upon or use any terminal "is conditioned upon compliance with the Port Authority rules and regulations; and entry upon or into any air terminal by any person shall be deemed to constitute an agreement by such person to comply with said rules and regulations * * *". Pursuant to a lease between United and Port Authority, executed February, 1964 as of January 1, 1957, and in effect during the period herein involved, covering the use by United of the airport's facilities, United agreed, among other things, "to observe and obey all rules and regulations which may from time to time during the term hereof be promulgated and enforced by the Port Authority * * *". *fn4"

 On July 24, 1962 and again on May 31, 1963, Port Authority entered into certian Grant-in-aid Agreements with the United States of America (acting through the Federal Aviation Agency), which agreed upon certain terms and conditions to pay 50% of the cost of extending runways 4-22 and runways 13-31 at LaGuardia to a length which would safely accommodate jet aircraft for landings and take-offs in either direction upon both such runways. *fn5"

 On April 9, 1964, prior to the extension of both runways to 7,000 feet, United (as well as the other airlines) requested permission of the Port Authority to operate its jet aircraft in landings on runways 13, 31 and 22 and in take-offs on runways 31, 13 and 4, asserting that "* * * Prior to the extension of the runways, we do not propose to conduct 727 landings on Runway 4 and 727 take-offs on Runway 22 unless the Port Authority and ourselves have agreed that the operations can be conducted on this runway at tolerable noise levels." Thereafter, on April 22, 1964, Port Authority, by letter, granted each airline such permission upon certain terms and conditions including a condition that take-offs on these runways would be permitted "only if they are so planned and conducted at the airport that the noise level of 112 PNdb as measured on the ground in the communities underlying the flight path after take-off will not be exceeded."

 For a period of two years thereafter none of the airlines conducted its jet aircraft operations using runway 4 for landings or runway 22 for take-offs. In the spring of 1966 all of the construction work and improvements for the extension of runways 4-22 contemplated by the two Grant Agreements were completed so that jet aircraft could safely land or take-off thereon in either direction. However, the construction work and improvements on runways 13-31 were not completed at that time and apparently will not be completed until on or about November 16, 1966, at which time both runways will be available by the Port Authority for landings and take-offs in either direction.

 Under the Federal Aviation Act of 1958 (49 U.S.C.A. §§ 1301 et seq.) Congress declared that the public has the right of freedom of transport through navigable air space of the United States and authorized the Federal Aviation Administrator to prescribe air traffic rules and regulations governing the flight of aircraft for the protection of aircraft and persons and property on the ground, including rules for safe altitudes of flight and for the assignment of the use of air space on such terms and conditions as may be necessary to insure the safety of aircraft. Pursuant to this authority the Federal Aviation Administrator adopted certain rules and regulations prescribing flight paths, traffic patterns, runway utilization, and landing and take-off procedures in connection with aircraft operations at LaGuardia Airport (Federal Aviation Regulations, §§ 91.1 et seq., 93.31 et seq. and 97.1 et seq.) and also establishing certain preferential runway systems for airports with operating control towers and providing that no pilot shall take off or land without clearance from the FAA control towers [§ 91.87(h)]. The regulations further provide that each pilot assigned a preferential runway must use that runway unless, in the interest of safety, the pilot should determine that another runway should be used, in which event he must again receive clearance from the FAA Air Traffic Control Tower [§ 91.87(g)].

 On October 8, 1962 the Federal Aviation Administrator gave notice to all air men ("NOTAM") prohibiting jet aircraft from taking-off on runway 22 or landing on runway 4 at LaGuardia Airport. In July, 1966 the Federal Aviation Administrator issued a Tower Bulletin (T.B. No. 66-5), effective August 8, 1966, rescinding this prior NOTAM and establishing a preferential runway system for LaGuardia Airport requiring each pilot to use the preferential runway assigned to him by the FAA Air Traffic Control Tower unless, in the interest of safety, the pilot requested and obtained a different clearance. The purpose of the bulletin, as described therein, was "To describe the preferential runway system and noise abatement procedures established for LaGuardia Airport." In listing the priorities with respect to the use of runways, take-offs on 22 and landings on 4 were designated as number 3 or the last priority. The bulletin further provided that preferential runways would not be assigned under certain adverse conditions "or when the reported surface wind is in excess of a 15 knot crosswind component."

 On July 27, 1966, apparently after the issuance of Tower Bulletin No. 66-5, the Port Authority, by letter, notified United and the other defendants that the Port Authority had not given permission to use runways 4-22, that the rules and regulations of the Port Authority and the terms of the agreement of the Port Authority with United concerning the use of those runways were still in effect, and that should the FAA Control Tower designate runway 4 for jet landings, or runway 22 for jet take-offs, as the preferential runways, such landings and take-offs would still violate said rules and regulations and said agreements with the Port Authority, and the letter further stated that at a meeting on November 24, 1964, at which Oscar Bakke, Eastern Regional Director of FAA, was present, the Borough President of Queens was advised at that time that "on behalf of the airlines, the FAA and the Port Authority, that the ultimate future use of the runways involving relatively few approaches and take-offs over Jackson Heights was dependent on lengthening both 13-31 and 4-22 to 7,000 feet. The extension of 13-31 to 7,000 feet will be completed on or about November 1, 1966." On August 5, 1966, the Metropolitan Airlines Committee (representing all the defendants) notified the Port Authority, by letter, that they had "serious reservations" about the viewpoints expressed in the Port Authority July 27, 1966 letter, but emphasized that their members were "vitally interested in abating aircraft noise" and would not land on runway 4 or take-off on runway 22 "except when FAA procedures and safety considerations dictate such action".

 On August 11, 1966, in reply to a letter of August 1, 1966 from the Port Authority, the FAA wrote in part: "The crux of our differences boils down to whether the Federal Aviation Agency will refuse jet operations on a runway at an airport when safety considerations indicate its use" and that the agreements entered into between the Port Authority and the airlines were not binding on the Federal Government, and that the "Agency cannot be expected to enforce private agreements in such circumstances; they remain a matter between the Port and the airlines only." The letter further stated that "We want to make it clear that in making the runway available for the fullest use required by safety considerations we are not directing that the runway be used. If, despite the action of the Agency cancelling the NOTAM, the Port and the airlines decide to continue their agreements to restrict the use of runways 4-22, the airlines will be required to abide by other applicable Federal Aviation Regulations. Thus, when wind and weather conditions require the use of 4-22, airlines will have the option of diverting to another airport. In this event, the Agency would have to consider what remedies are available under the FAAP agreement."

 Thereafter, on August 20, 1966, one defendant landed a jet aircraft on runway 4, and on or about August 23, 1966 a jet aircraft of each defendant took off on runway 22 after receiving clearance from the FAA Air Traffic Control Tower but without the permission of the Port Authority. Thereupon the Port Authority applied for and obtained from the State court the temporary restraining order referred to earlier.

 Before proceeding to the crucial issues here involved, it is appropriate to dispose of certain contentions advanced by United, which the ...

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