nitepilot79
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Airbus To Sue Skymark

Mon Dec 22, 2014 10:20 am

 
Prost
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 10:30 am

I thought that there was some sort of negotiated settlement, and looking at Google there was an article in FT that indicated, although the terms weren't disclosed. Is this a sign that the 'we thought we had an agreement' wasn't quite what it appeared?

I guess if I were in Airbus' shoes, I can't really blame them. A contract is a contract. If it became apparent that they'd be unable to successfully launch the frame, it was in their best interest to work with Airbus on deferral or cancellation and moving deposits to other fleets.

So if Airbus wins, do they force Skymark to take the planes? That would be an uncomfortable business situation, and would Skymark losing the case place them in to receivership?
 
ba319-131
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 10:48 am

I thought the dust had settled on this.

This can't be comfortable for the folks @ Skymark and Airbus who have regular contact re the A330 fleet.
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TC957
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 11:13 am

Unbelievable ! If BC couldn't pay for the 380's in the first place, how will they pay for them thru the UK courts ?

This hardly bods well for future Airbus sales in Japan. And BC being a A330 customer as well.
Only gain here is to the UK lawyers bank accounts.
 
Bongodog1964
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 11:52 am

Quoting TC957 (Reply 3):

This hardly bods well for future Airbus sales in Japan. And BC being a A330 customer as well.
Only gain here is to the UK lawyers bank accounts.

Whats Airbus to do ? you can't let purchasers walk all over you, where would it end ? It seems bad enough at times with the CEO's of the ME3 dictating terms to both A & B, at least though they back up their demands with hard cash.

Airbus have in good faith spent a lot of time and money on Skymark, made a proposal, had their offer accepted then commenced work. Skymark now seem to think they can walk away without penalty.

Are Airbus to consider Japan as a place with different trading rules to the rest of the World where contracts can be cancelled whenever the purchaser says so with no penalty just to ensure no loss of face ?

Its true that cancellations do happen quite regularly, normally however its down to one of three scenarios:

The airline has shut down and has no money so there's no one to claim from

The airline agrees to roll over their deposit onto a model more suited to their changed circumstances

The airline accepts the penalty fee.

Small airlines making major purchases need to be careful, yes the possible benefits are huge, but so are the drawbacks, Skymark have agreed to buy planes to what is probably a value higher than their entire worth, a decision that may well now sink them.

Cast your minds back to one of the greatest decisions ever by what was then a relatively small airline, FR's purchase of a huge fleet of B738's. The airlines were in recession and deferring orders, along came an Irish upstart who looked to be the saviour of the 737 production line, the resulting deal was described later by the purchaser as "a rape" he had got such a good deal. And so it turned out, they took delivery of brand new planes, operated them for 3 or 4 years and sold them on for more money than the replacement.
If however the airline recession had dragged or the 738 had not been so desirable n there wouldn't have been the 2nd hand market and the deal would have probably brought FR to its knees.

This is what has happened here, the A380 has become almost a one airline aircraft, customers aren't exactly queuing up at Toulouse to place and we are faced with the prospect of major operators eventually buying either a stretched version or a NEO and pushing their aircraft onto a depressed 2nd hand market. The result is that even if Skymark wanted to operate these frames they can't get affordable finance for them due to predicted low residuals
 
travelhound
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 11:53 am

Quoting Prost (Reply 1):

Yes, a contract is a contract, but a contract has many clauses. Some benefit Airbus, whilst others would benefit Skymark.

I'd suggest part of the contract conditions would have dealt with Skymark not being able to finance the aircraft. Why Skymark couldn't finance the aircraft is probably the more interesting question. Skymark could argue Airbus was partly at fault and as such the conditions of the sale were not being met.

At the end of the day, it will be a negotiated settlement. Neither party would want to protract this dispute any longer than needed.
 
TheSonntag
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 12:21 pm

A purchase agreement regarding airplanes isn't exactly 1 side long. Is there actually a draft anywhere people can see? Being a lawyer, I would actually love to see such an agreement (the details may vary, but the general provisions certainly are the same all the time).
 
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zeke
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 12:50 pm

Quoting TheSonntag (Reply 6):
Is there actually a draft anywhere people can see? Being a lawyer, I would actually love to see such an agreement (the details may vary, but the general provisions certainly are the same all the time).

Yes lots of redacted ones the internet e.g.

http://contracts.onecle.com/usairway...irbus-a350-supply-2005-09-27.shtml
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CARST
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 12:59 pm

Quoting zeke (Reply 7):

Haha, I copied that into Word. 266 pages! That is a guranty for the lawyers on both sides to make money. And a high probability for both sides to loose a lot. One side will probably loose a customer, while the other side will probably pay a hefty fine for opting out too late.
 
TheSonntag
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 1:00 pm

Thank you Zeke.

Not suprisingly, the contract style is very american-style common-law based, but I guess that the number of details has to be this way in such a case.
 
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par13del
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 1:02 pm

Quoting Prost (Reply 1):
So if Airbus wins, do they force Skymark to take the planes? That would be an uncomfortable business situation, and would Skymark losing the case place them in to receivership?

Airbus cancelled the contract when interim payments were missed, I guess Airbus is now saying that Skymark have the money to pay and they were just stiffed, the stock did rise after the cancellation due to their restructuring.
If not, expect Skymark to go out of business or is this a strategy to see if "National" interest in Japan would step up to preserve national pride?

Quoting bongodog1964 (Reply 4):
Whats Airbus to do ? you can't let purchasers walk all over you, where would it end ? It seems bad enough at times with the CEO's of the ME3 dictating terms to both A & B, at least though they back up their demands with hard cash.

Hmmmm, maybe better screening of clients, unfortunately the market went south on Skymark and rather than both sides coming together to delay delivery, everyone stuck their ground and we now have what we have.

Quoting bongodog1964 (Reply 4):
Are Airbus to consider Japan as a place with different trading rules to the rest of the World where contracts can be cancelled whenever the purchaser says so with no penalty just to ensure no loss of face ?

So we are looking at this from a "National" standpoint rather than just one carrier having a problem paying for their a/c, let's see if the government steps in and provides some subsidy to Skymark to take delivery.
Hope this does not give Boeing a chance to file a WTO protest   
 
evomutant
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 1:02 pm

Clearly every contract has a unique forum for disputes.

That US contract designates New York State as the forum for any contractural disputes. Evidently the Skymark contract designated England as the forum.

Nothing unusual in that of course.
 
FWAERJ
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 1:33 pm

Quoting TC957 (Reply 3):
This hardly bods well for future Airbus sales in Japan.

Between JL choosing the A350 over the 777X, the preference of Japanese LCCs for the A32x over the 737NG, and NH buying a bunch of A32xNEOs, I'd say that the future of Airbus in Japan looks perfectly fine with or without BC.

[Edited 2014-12-22 05:35:36]
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racercoup
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 1:46 pm

Quoting bongodog1964 (Reply 4):
Small airlines making major purchases need to be careful, yes the possible benefits are huge, but so are the drawbacks, Skymark have agreed to buy planes to what is probably a value higher than their entire worth, a decision that may well now sink them.

If this is true part of the blame rests on the seller. This deal never should have been done if there were doubts about the ability to pay. The smells of the Leahy crew wanting orders on the books and relaxing due diligence.
 
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KarelXWB
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 2:03 pm

Quoting TC957 (Reply 3):
If BC couldn't pay for the 380's in the first place
Quoting travelhound (Reply 5):
Why Skymark couldn't finance the aircraft is probably the more interesting question.

Skymark made all pre-payments from their annual profits. It went fine because the company was in a good financial shape for years. Then they made a loss in Q1 2014 and were suddenly unable to make the next pre-payment (for cabin fit).

Quoting bongodog1964 (Reply 4):
Small airlines making major purchases need to be careful, yes the possible benefits are huge, but so are the drawbacks, Skymark have agreed to buy planes to what is probably a value higher than their entire worth, a decision that may well now sink them.

Skymark was putting almost all their profits in the A380 project. Back in 2013 the CEO made the following comment:

“Almost all our profits are going to pay for the A380s.”

From http://www.japantimes.co.jp/news/201...es-ways-to-finance-a380-purchases/

I'm not sure why they never looked for a loan, lease or sale/leaseback construction, similar like their A330s. Investing all your profits in a single project is a big risk.

Quoting FWAERJ (Reply 12):
Between JL choosing the A350 over the 777X, the preference of Japanese LCCs for the A32x over the 737NG, and NH buying a bunch of A32xNEOs, I'd say that the future of Airbus in Japan looks perfectly fine with or without BC.

   It's not like a handful Skymark A330s will make the difference.

[Edited 2014-12-22 06:11:45]
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SelseyBill
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 2:21 pm

Quoting racercoup (Reply 13):
The smells of the Leahy crew wanting orders on the books and relaxing due diligence.

Really ?

I don't think a salesman like Leahy would have much to do with the guts of the contract, and Airbus would not be persuing litigation if they had not carried out due diligence.

What makes you think a major industrial giant selling multiple-million dollar products would be 'relaxed' about anything ?


Rgds,

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Flyglobal
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 2:42 pm

Quoting KarelXWB (Reply 14):
I'm not sure why they never looked for a loan, lease or sale/leaseback construction, similar like their A330s. Investing all your profits in a single project is a big risk.

The owner/ CEO of Skymark may have its special own business rules.
He wants to stay independant as a first rule.

Talking with first ANA and then JAL for coopereation - probably on proposal of Airbus - both negotiations may have failed settlement.
I Imagine that Skymark still feels in the position to dictate the conditions rather then also to accept some.

I am sure that Airbus tried a lot to settle this, bout probably everything failed on stubborness of the Owner/ CEO.

So conclusion of Airbus after a 1/2 year discussions over and over: enough is enough

regards

Flyglobal
 
PHX787
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 2:42 pm

Good. This is another much needed "Matthew Perry" for Japan to finally change its horrible business practices. Sue BC into oblivion. It will be a huge wakeup call.

Quoting TC957 (Reply 3):
This hardly bods well for future Airbus sales in Japan.

JL gonna be all A i think.
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scbriml
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 2:50 pm

Quoting racercoup (Reply 13):
The smells of the Leahy crew wanting orders on the books and relaxing due diligence.

Yes, of course it would. To some.
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ATLFlyer323
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 4:33 pm

Quoting PHX787 (Reply 17):
JL gonna be all A i think.

So what do you think they will do with their 787's and new 777's?

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blueflyer
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 4:42 pm

Quoting flyglobal (Reply 16):
So conclusion of Airbus after a 1/2 year discussions over and over: enough is enough

Not necessarily. Sometimes filing a lawsuit is a negotiation tactic, not a sign negotiations have ended. Nothing motivates parties to reach a settlement quite like an upcoming trial date. Perhaps things weren't moving fast enough in Airbus' opinion.
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EPA001
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 4:50 pm

Quoting KarelXWB (Reply 14):
I'm not sure why they never looked for a loan, lease or sale/leaseback construction, similar like their A330s. Investing all your profits in a single project is a big risk.

That is a question I would like to hear an answer for.

Quoting flyglobal (Reply 16):
The owner/ CEO of Skymark may have its special own business rules.
He wants to stay independant as a first rule.

But is that wise? Many competitors are using these constructions quite successfully. So why not Skymark?
 
PlaneInsomniac
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 5:01 pm

Wait, what is happening here? Is this not good old a.net, where praise for the "free market" and capitalism never ends?

All of a sudden people are seriously demanding that Airbus act like a charity.
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par13del
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 5:10 pm

Quoting PlaneInsomniac (Reply 22):
Wait, what is happening here? Is this not good old a.net, where praise for the "free market" and capitalism never ends?

All of a sudden people are seriously demanding that Airbus act like a charity.
Quoting EPA001 (Reply 21):
But is that wise? Many competitors are using these constructions quite successfully. So why not Skymark?

I thought it was the other way around, Airbus wants Skymark to merge with ANA or JL so that they can get paid, being independent is overrated.
 
TheSonntag
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 5:19 pm

Quoting blueflyer (Reply 20):
Not necessarily. Sometimes filing a lawsuit is a negotiation tactic, not a sign negotiations have ended

Indeed. Sometimes it is the only way to get a result for the parties. We do it all the time if negotiations do not come along.
 
Pyrex
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 5:44 pm

Quoting TheSonntag (Reply 9):
Not suprisingly, the contract style is very american-style common-law based

It could be because a) the purchaser is an U.S. company (in that particular example) or b) the parties that entered into a contract actually want it to be enforced...
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IADCA
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 5:49 pm

Quoting TheSonntag (Reply 9):
Thank you Zeke.

Not suprisingly, the contract style is very american-style common-law based, but I guess that the number of details has to be this way in such a case.

Well, that's a contract with an American customer providing for the application of New York law (see 22.4). I'd be surprised if an Airbus contract with a Japanese company would use U.S. law.

Quoting evomutant (Reply 11):
Clearly every contract has a unique forum for disputes.

That US contract designates New York State as the forum for any contractural disputes. Evidently the Skymark contract designated England as the forum.

Nothing unusual in that of course.

That contract provides that New York law applies. Choice of law and choice of forum clauses are not the same thing. The forum-selection clause in that contract is non-exclusive, meaning suit could be brought in other courts. But you're right, it's not unusual to have a forum-selection clause.
 
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7BOEING7
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 6:16 pm

Quoting bongodog1964 (Reply 4):
And so it turned out, they took delivery of brand new planes, operated them for 3 or 4 years and sold them on for more money than the replacement.

That's an "urban legend" that never goes away. It was more like 7 to 8 years, not 3 or 4 -- purchases 1999 thru 2007, sales 2007 thru 2014.
 
TheSonntag
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 6:37 pm

Quoting IADCA (Reply 26):
Well, that's a contract with an American customer providing for the application of New York law (see 22.4). I'd be surprised if an Airbus contract with a Japanese company would use U.S. law.

I would not be so surprised, actually. After all, planes are also universally sold in US Dollars, and having the same law for contracts might in fact be useful, especially if you have arbitration clauses in the contract, anyway (usually lawsuits will not take place before ordinary national courts in such matters, instead it is kept to arbitration.

Worst idea ever, and unfortunately rather common in my personal experience as a lawyer, would be to use US contracts with US terminology, and choose German/French/different law. This just leads to misunderstandings - after all, each country has several hundred years of legal tradition which brought forward its own terminology. Translating Auflassungsvormerkung into English certainly does not work.
 
Planesmart
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 7:09 pm

Quoting TheSonntag (Reply 28):
After all, planes are also universally sold in US Dollars

That might be how they are quoted, but USD is no longer the universal currency of actual contracts. Airbus were first to offer alternative currencies and more often multi-currency prices based on customer preference and / or natural flows.
 
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clickhappy
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 7:21 pm

Quoting planesmart (Reply 29):
but USD is no longer the universal currency of actual contracts

The Yen is down ~25% both against the Euro and the US Dollar since Skymark placed their order in 2010.
 
Planesmart
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 7:28 pm

Quoting TheSonntag (Reply 28):
Worst idea ever, and unfortunately rather common in my personal experience as a lawyer, would be to use US contracts with US terminology, and choose German/French/different law. This just leads to misunderstandings - after all, each country has several hundred years of legal tradition which brought forward its own terminology. Translating Auflassungsvormerkung into English certainly does not work.

You are right. And the USA has State variations too which can make interpretation even more exciting.

The legal action will be as much about identifying who is liable to pay, as the actual amounts payable.

Usual practice is for pre-delivery funding to be a combination of cash deposits and guarantees. As cash progress payments are made (which may be in the form of bridging finance), the value of the guarantees diminishes.

Simultaneously with delivery (or slightly before), settlement takes place. The final guarantees (usually bar one - there is a residual for warranty / performance component) are retired, pre-delivery funders are repaid (though they may be the same entity / entities providing / arranging post-delivery funding), and the aircraft is handed over.

It would be extremely unusual for either Airbus or Boeing to accept guarantees issued by the customer.

It is common for orders to be conditional on buyers obtaining finance, but this would be required well before an aircraft is completed, unless the manufacturer gave time.

The legal action being pursued by Airbus is therefore most likely to obtain agreement on what is owed, and by whom.

It is quite possible that the buyer is co-operating with Airbus, in that they paid for guarantees to be issued, and agree that Airbus should be reimbursed.

The other reason for the legal action, is likely to be to allow Airbus to find a home for the aircraft sooner than later, with the courts agreeing on the amounts owed, and by whom, so Airbus can negotiate with those parties a value for the aircraft, and find them new owners, as they will be racking up interest, insurance and storage fees.
 
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DocLightning
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 8:42 pm

Quoting zeke (Reply 7):
Yes lots of redacted ones the internet e.g.

That's interesting. I would have thought that the texts of these agreements would be covered under NDAs and be highly proprietary.
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diverdave
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 9:08 pm

Quoting clickhappy (Reply 30):
The Yen is down ~25% both against the Euro and the US Dollar since Skymark placed their order in 2010.

Good point. I wonder how much money Skymark has sunk into these frames.

David
 
IADCA
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 9:17 pm

Quoting TheSonntag (Reply 28):
I would not be so surprised, actually. After all, planes are also universally sold in US Dollars, and having the same law for contracts might in fact be useful, especially if you have arbitration clauses in the contract, anyway (usually lawsuits will not take place before ordinary national courts in such matters, instead it is kept to arbitration.

My experience has been that non-US entities, and even many US entities, want to stay out of U.S. courts to the maximum extent possible. That's one of the major reasons arbitration clauses have become so prevalent: to remove the chance of a commercial case ending up in a U.S. courtroom and avoid being subject to the U.S. discovery process. Choice of law isn't such a big deal there as the procedure doesn't necessarily go with the substantive law, but staying out of a U.S. court (state or federal) is important for many companies just because the discovery process is so extensive, slow, and and expensive.

Quoting TheSonntag (Reply 28):
Worst idea ever, and unfortunately rather common in my personal experience as a lawyer, would be to use US contracts with US terminology, and choose German/French/different law. This just leads to misunderstandings - after all, each country has several hundred years of legal tradition which brought forward its own terminology. Translating Auflassungsvormerkung into English certainly does not work.

The worst is when the two sides of a document import their own terms and you end up with a draft of crap that's unintelligible unless you have experience in both systems. I've seen that too (not in contracts I've been involved with negotiating, but down the line once it's too late to do anything about them.)
 
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par13del
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RE: Airbus To Sue Skymark

Mon Dec 22, 2014 9:57 pm

Quoting IADCA (Reply 34):
is important for many companies just because the discovery process is so extensive, slow, and and expensive.

.....not to mention eventually being public sooner rather than later.

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