Microsoft Word - MOSS - Complaint Ver 9

Case 3:19-cv-00637-MMH-JBT Document 1 Filed 05/30/19 Page 1 of 8 PageID 1
IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GARY MOSS, Case No.:

Plaintiff,
-vs.-
MIAMI AIR INTERNATIONAL, INC.,
Defendant.
______________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, Gary Moss, sues Defendant, Miami Air International, Inc., (hereinafter, “Miami
Air”), and alleges as follows:
Moss -vs.- Miami Air International, Inc.

Spohrer & Dodd, P.L.
COMPLAINT
1
Jurisdictional Allegations
1. This action arises out of a May 3, 2019 commercial airplane crash in Jacksonville,
Duval County, Florida following an international charter flight from Naval Station Guantanamo
Bay, Cuba, to Naval Air Station Jacksonville, U.S.A.
2. This action is governed by the Convention for the Unification of Certain Rules for
International Carriage by Air (hereinafter, “The Montreal Convention”).
3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because
this case arises out of a treaty of the U.S.A.
4. The Montreal Convention applies to all international carriage of persons, baggage
or cargo performed by aircraft for reward, so long as that carriage occurs between two countries
that are signatories to The Montreal Convention.
5. Both the U.S.A. and Cuba are signatories to The Montreal Convention.
6. Naval Station Guantanamo Bay is a military base operated by the U.S.A.
7. While the U.S.A. has complete control over Naval Station Guantanamo Bay, the
leased land there remains within the ultimate sovereignty of Cuba.
8. At all times herein mentioned, Miami Air is a for profit corporation organized under
the laws of the State of Florida.
9. Miami Air is common carrier for hire engaged in the transportation of charter airline
passengers in both domestic and international air travel from its principal place of business
located at 5000 NW 36th Street, #307, Miami, Florida 33166.
10. This Court has general and specific personal jurisdiction over Miami Air because
Miami Air’s principal place of business is in Florida.

COMPLAINT
2
11. This Court is a proper venue for this action pursuant to Article 33 of The Montreal
Convention because Jacksonville, Florida was the place of destination of the Miami Air flight
which is the subject of this case. Venue is also proper in this Court pursuant to 28 U.S.C. § 1391,
because the crash and a substantial portion of the events and omissions occurred in
Jacksonville, Florida.
General Allegations
12. At all times material, Miami Air owned, operated, managed, controlled, serviced,
maintained, flew, and supervised a 2001 Boeing 737-81Q model airplane bearing Federal
Aviation Administration (FAA) registration N732MA.
13. On May 3, 2019, Miami Air dispatched N732MA for an international flight from
Leeward Point Field in Guantanamo Bay Cuba to Naval Air Station Jacksonville (“NAS JAX”) as
Flight 293.
14. Flight 293 was a commercial flight operating pursuant to 14 CFR § 121 of the
Federal Aviation Regulations and was being flown under Instrument Flight Rules.
15. At all material times, the agents, dispatchers, pilots and other flight crew, officers,
mechanics, supervisors, ground crew and management personnel involved with Flight 293 were
employees of Miami Air, acting within the course and scope of their employment.
16. Under FAA Regulations, pilots are required to conduct a preflight investigation of
the aircraft, current weather information, forecast weather information and airport conditions for
all airports of intended departure and landing.
17. The FAA warns pilots to maintain 20 miles separation from any thunderstorm.

COMPLAINT
3
18. At the time of Flight 293’s departure, the potential for building thunderstorms in the
Jacksonville area was forecast.
19. Flight 293 was occupied by 136 passengers and 7 crew members, including Gary
Moss.
20. Due to mechanical problems, the departure of Flight 293 was delayed more than
four hours.
The Flight
21. Miami Air Flight 293 departed from Cuba and proceeded in a northerly direction
towards Jacksonville.
22. Mechanical problems prevented Flight 293 from climbing to its best fuel economy
cruising altitude of between 25,000 and 32,000 feet and it remained at an altitude of only about
17,000 feet, which required far more fuel consumption. Passengers also complained of
excessive cabin temperatures due to the inoperable air conditioning system.
23. As Flight 293 approached the Jacksonville area, its flight crew communicated with
air traffic controllers located at Jacksonville Approach, an FAA radar facility that provides
separation and weather services to pilots about the conditions at Jacksonville area airports,
including NAS JAX.
24. The prevailing winds at NAS JAX were out of the West at about 290° at 8 knots,
gusting to 16 knots, which favored Runway 28.

COMPLAINT
4
25. Runway 28 at NAS JAX is a paved 9,000-foot-long runway which is oriented to the
West with the opposite direction being Runway10, which is oriented to the East.1 Because of a
displaced threshold for military jet arresting gear at the West end of the runway, the available
landing distance was only 7,800 feet.
26. Prior to Flight 293’s arrival to NAS JAX, controllers warned the flight crew that there
was moderate to heavy precipitation on the final approach to Runway 28.
27. The flight crew asked controllers about Runway 10 and were told that it also
showed moderate to heavy precipitation, and storms were building at about the five-mile final
approach.
28. With this information, the flight crew elected to continue towards Runway 28.
29. As Flight 293 was cleared to descend to an altitude of 5000 feet, the controllers
warned the flight crew that controllers at NAS JAX’s air traffic control tower had reported that
“both runways look pretty bad.”
30. Controllers further reported convective thunderstorm activity, phrased as
“moderate to heavy precipitation,” on both sides of the airport.
31. Despite this warning, the flight crew elected to proceed to NAS JAX, rather than to
divert to an alternate airport or to hold while the thunderstorm activity moved or dissipated.
32. After clearing Flight 293 to descend to an altitude of 3,000 feet, controllers asked
if the pilots would prefer Runway 10, advising that it looks “best.”
1
Runways are oriented to their magnetic heading in the direction an aircraft would be landing.
For example, at NAS JAX, a pilot landing on Runway 28 would be heading approximately 280°.
Those landing on the opposite end, Runway 10, which is the same pavement as Runway 28,
would be heading 110°.

COMPLAINT
5
33. The wind conditions also created a 15-knot tailwind condition for aircraft landing
on Runway 10, which would increase the required landing distance for Flight 293.
34. Despite the shorter runway and tailwind, the flight crew advised controllers of their
decision to divert to Runway 10 and began making a series of assigned turns to align the aircraft
to the runway.
35. About 10 miles out, controllers instructed the flight crew to contact Navy controllers
at NAS JAX and issued a clearance for the final approach.
36. At the time, there was an active thunderstorm directly over the airport causing
moderate to heavy rain and standing water on the pavement.
37. When Flight 293 arrived at Runway 10 at about 9:49 p.m. local time, the airplane
was too high, too fast, and right of the runway’s centerline.
38. Flight 293 touched down with an airspeed of about 200 miles-per-hour, which is
about 25 miles-per-hour faster than appropriate.
39. During its travel down the runway, the flight crew was unable to appreciably slow
the aircraft or come to a stop before the runway’s end due to the excessive speed, the tailwind
condition and the lack of working thrust reversers.
40. As it neared the end of the runway, the flight crew lost control of the aircraft,
allowing it to veer off the paved runway.
41. The flight crew never warned the passengers to brace for the imminent impact.
42. The airplane crashed through a rock wall at the end of the runway and came to an
abrupt final stop in the St. Johns River.

COMPLAINT
6
COUNT I
Strict Liability under Montreal Convention
Plaintiff re-alleges, and incorporates by reference, the allegations set forth in paragraphs
one (1) through forty-two (42) above, and alleges further:
43. Miami Air’s liability is governed by Article 17 paragraph 1 and Article 21 paragraph
1 of the Montreal Convention.
44. Plaintiff sustained injuries while a passenger on Flight 293 as the result of an
“accident” within the meaning of the Montreal Convention.
45. Under Article 21 and the Inflation Adjustments adopted by the U.S. Department of
Transportation as of December 2009, Miami Air is strictly liable for damages to the Plaintiff
caused by the accident described herein up to a value of 113,100 Special Drawing Rights (SDR).
46. Plaintiff is therefore not required to prove any fault on the part of Miami Air for
damages up to approximately $156,000.00.
47. As a direct and proximate result of the accident, Plaintiff has suffered bodily injuries
and has been forced to incur the expense of medical care, nursing care and treatment. Plaintiff
has also been forced to endure disability, pain, suffering, mental anguish, embarrassment,
inconvenience, loss of earnings, loss of the ability to earn money, loss of capacity for the
enjoyment of life, and aggravation of a previous condition. Plaintiff's injuries are continuing and
Plaintiff will suffer from these injuries, damages and losses in the future.
Wherefore, Plaintiff, Gary Moss, demands judgment against Defendant Miami Air
International, Inc., for all damages permitted by law, costs of this action, and a trial by jury on all
issues.

COMPLAINT
7
SPOHRER & DODD, P.L.
/s/ Galen D. Bauer

Galen D. Bauer, Esq.
Board Certified Aviation Attorney
Florida Bar No. 14156
Barry E. Newman, Esq.
Robert F. Spohrer, Esq.
Keith L. Maynard, Esq.
76 S. Laura Street, Suite 1701
Jacksonville, FL 32202
(904) 309-6500 Telephone
(904) 309-6501 Facsimile
bnewman@sdlitigation.com
gbauer@sdlitigation.com
bnewman@sdlitigation.com
rspohrer@sdlitigation.com
kmaynard@sdlitigation.com
Attorneys for Plaintiff Gary Moss

COMPLAINT
8

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Case 3:19-cv-00637-MMH-JBT Document 1 Filed 05/30/19 Page 1 of 8 PageID 1

IN THE UNITED STATES DISTRICT COURT

GARY MOSS, Case No.:

COMPLAINT AND DEMAND FOR JURY TRIAL

Air”), and alleges as follows:

Moss -vs.- Miami Air International, Inc.

Bay, Cuba, to Naval Air Station Jacksonville, U.S.A.

International Carriage by Air (hereinafter, “The Montreal Convention”).

this case arises out of a treaty of the U.S.A.

4. The Montreal Convention applies to all international carriage of persons, baggage

that are signatories to The Montreal Convention.

6. Naval Station Guantanamo Bay is a military base operated by the U.S.A.

leased land there remains within the ultimate sovereignty of Cuba.

the laws of the State of Florida.

located at 5000 NW 36th Street, #307, Miami, Florida 33166.

Miami Air’s principal place of business is in Florida.

Moss -vs.- Miami Air International, Inc.

Aviation Administration (FAA) registration N732MA.

all airports of intended departure and landing.

Moss -vs.- Miami Air International, Inc.

Jacksonville area was forecast.

excessive cabin temperatures due to the inoperable air conditioning system.

including NAS JAX.

gusting to 16 knots, which favored Runway 28.

Moss -vs.- Miami Air International, Inc.

landing distance was only 7,800 feet.

was moderate to heavy precipitation on the final approach to Runway 28.

“both runways look pretty bad.”

30. Controllers further reported convective thunderstorm activity, phrased as

“moderate to heavy precipitation,” on both sides of the airport.

Moss -vs.- Miami Air International, Inc.

at NAS JAX and issued a clearance for the final approach.

moderate to heavy rain and standing water on the pavement.

about 25 miles-per-hour faster than appropriate.

condition and the lack of working thrust reversers.

allowing it to veer off the paved runway.

abrupt final stop in the St. Johns River.

Moss -vs.- Miami Air International, Inc.

one (1) through forty-two (42) above, and alleges further:

1 of the Montreal Convention.

“accident” within the meaning of the Montreal Convention.

damages up to approximately $156,000.00.

Moss -vs.- Miami Air International, Inc.

SPOHRER & DODD, P.L.

/s/ Galen D. Bauer

Moss -vs.- Miami Air International, Inc.

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