Getting Your Feet Wet: Admiralty Law for Aviation Practitioners. Introduction

Transcription

1 Getting Your Feet Wet: Admiralty Law for Aviation Practitioners Peter F. Frost Director Aviation and Admiralty Litigation Civil Division, Torts Branch U.S. Department of Justice Introduction Under the right circumstances, an aviation accident may invoke admiralty jurisdiction. The questions for aviation practitioners are - what are those circumstances and, if admiralty jurisdiction attaches, what are its effects? This paper reviews key holdings on those questions and considers both the potential bases for asserting admiralty jurisdiction in aviation crash cases and the consequences of that jurisdiction s attaching. Understanding Admiralty Jurisdiction The focus of admiralty jurisdiction is the protection of maritime commerce 1 through uniform rules of decision. Protection of commerce and uniformity - those are key concepts in any maritime jurisdictional argument. From its inception, Admiralty has concerned itself with the protection and promotion of maritime commerce doing business by sea. The law of Admiralty flows from and traces its roots directly to the earliest maritime trade in the Mediterranean Sea, involving ancient sea powers like Rhodes and Phoenicia. With vessels carrying cargo among diverse countries and city states, the tradesmen involved clamored for legal mechanisms to protect their interests. 1 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 544 (1995). 1

2 Vessel suppliers needed tools to enforce claims against ships, which by their very nature are transient and sometimes not easily located. Vessel owners and operators needed assurance that they would be treated fairly and uniformly in all the ports at which they called. Joint and reciprocal assurances were necessary to allow prospective merchants, insurers and investors to gauge accurately the risk of maritime ventures. These concerns lead to development of the ancient Rhodian Code. The Code, said 2 to antedate the birth of Christ by about 900 years, was one of the first compilations of agreements among nations to govern maritime disputes. It addressed salvage, contribution, general average, jettison - all parts of the wide panoply of actions and 3 remedies contemplated by seamen in the prosecution of their maritime trade. The Code, crafted by a single state to suit its own needs, soon became of general authority because 4 accepted and assented to as a wise and desirable system for regulating maritime trade. Such laws of Admiralty, initially crafted and adopted by seafaring nations to provide uniform expectations and remedies for maritime commerce, met their purely commercial needs, and became the bases for non-commercial legal remedies as well. While the bases for admiralty jurisdiction have since been explored and enumerated in countless cases, the 2 Robertson v. Baldwin, 165 U.S. 275 (1897). 3 See McAndrews v. Thatcher, 70 U.S. 347 (1865); Barnard v. Adams, 51 U.S. 270 (1850); Columbian Ins. Co. of Alexandria v. Ashby & Stribling, 38 U.S. 331 (1839). 4 The Scotia, 81 U.S. 170 (1871). 2

3 golden threads through all have continued to be the protection and promotion of maritime commerce, and uniformity. When Admiralty Rules Apply So when might these arcane admiralty rules apply to a dispute? Originally, the 5 application of admiralty jurisdiction depended on the location of the tort. If the tort occurred on navigable waters, admiralty jurisdiction applied. In certain cases, that test is still applied. For example, defamation on a ship at sea has been held to be a maritime 6 tort. The complexities of modern business and transportation, however, have forced refinement of the test. In a series of cases including Executive Jet Aviation, Inc. v. City of 7 8 Cleveland and, more recently, Air Crash At Belle Harbor, N.Y. on November 12, 2001, courts have examined the application of admiralty jurisdiction to air crash cases. 5 The Plymouth, 70 U.S. 20, 35 (1865)( The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality-the high seas or navigable waters where it occurred. Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance. ). 6 th Wells v. Liddy, 186 F.3d 505, 524 (4 Cir. 1999) 7 Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249 (1972). 8 Air Crash At Belle Harbor, N.Y. on November 12, 2001, 2006 AMC 1340 (S.D.N.Y. 2006). 3

4 Executive Jet Aviation, Inc. v. City of Cleveland In 1904 Justice Holmes observed that, The precise scope of admiralty jurisdiction 9 is not a matter of obvious principle or of very accurate history. As the modern world grew up, the difficulty that led to Holmes s observation became more and more relevant. The Supreme Court of the United States first found the opportunity to address admiralty jurisdiction with respect to modern airplane crashes in navigable waters in Executive Jet in A jet owned and operated by Executive Jet Aviation took off from an airport in 10 Cleveland, Ohio, bound for Portland, Maine. Unfortunately, the aircraft intercepted a flock of seagulls during takeoff, and the resulting engine damage caused it to lose power, come back down on the edge of the runway, and ultimately sink into the waters of Lake 11 Erie. The company sued the City of Cleveland for negligence, arguing that admiralty 12 jurisdiction applied because the aircraft sank in navigable water. 9 United States v. Evans, 195 U.S. 361, 365 (1904) (Justice Holmes contemplated extending admiralty jurisdiction over the case of a vessel s destruction of a fixed navigational beacon. He noted that it would not traditionally be granted because the beacon was anchored to land, but Holmes found that it was also maritime in nature and granted admiralty jurisdiction) Executive Jet, 409 U.S. at 250. at

5 The Court noted the difficulties modern courts had faced in evaluating whether 13 admiralty jurisdiction attached under the traditional test, along with the idea that admiralty laws are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the 14 navigational rules of the maritime road. Courts had struggled for some time with granting admiralty jurisdiction in cases where the tort only related to admiralty because it 15 occurred in navigable water. Breaking with tradition, the Executive Jet court decided that the locality test by itself was not sufficient to test for admiralty jurisdiction in 16 aviation tort cases. The locality test involved the court s looking only at the location of the wrong, requiring that it have been committed wholly upon the high seas or navigable 17 waters for admiralty jurisdiction to be invoked. In addition to locality, the Executive at at at 256 (citing Minnie v. Port Huron Terminal Co., 295 U.S. 647 (1935) (longshoreman knocked on to a pier from a vessel, admiralty jurisdiction existed); In Smith & Son v. Taylor, 276 U.S. 179 (1928) (longshoreman on pier when knocked into water, no admiralty jurisdiction because tort took place on land); Chapman v. City of Grosse Point Farms, 385 F.2d 962, 966 (6th Cir. 1967) (recreational swimmer injured while diving into the water, admiralty jurisdiction did not exist); Davis v. City of Jacksonville Beach, Fla., 251 F. Supp. 327 (M.D. Fla. 1965) (swimmer injured by a surfboard, admiralty jurisdiction existed); King v. Testerman, 214 F. Supp. 335 (E.D. Tenn. 1963) (water skier injured while a boat was being used to tow the skier, admiralty jurisdiction existed)). 16 at at 253. (citing The Plymouth, 70 U.S. at 35 (vessel caught on fire while anchored at a wharf so the Court held that there was not admiralty jurisdiction because the tort was not committed on the high seas or navigable water)). 5

6 Jet Court held that, the wrong must also bear a significant relationship to traditional 18 maritime activity. Accordingly, the Court concluded that [t]here is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft 19 between points within the continental United States, because there was no significant relationship between a plane flying from one part of the continental United States to 20 another, and traditional maritime activity. The idea that an aircraft might have a significant relationship to a traditional maritime activity, however, was not completely rejected by the Court. The Court hypothesized that a transoceanic flight might be found to have a significant relationship to traditional maritime activity because it would be performing a function 21 traditionally performed by waterborne vessels. This idea would be used by the Court in future extensions of admiralty jurisdiction for aviation cases. Over the next decades, the Supreme Court examined the significant relationship to traditional maritime activity in many and varied contexts. In Foremost Ins. Co. v. 22 Richardson, the Supreme Court applied the Executive Jet test to an accident involving two pleasure boats. In the face of arguments that regulation of pleasure boating was not at 268. at 274. at 272. at 271. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 669 (1982). 6

7 properly the business of Admiralty, the Court found that such an accident, a collision between water craft, obviously bore a significant relationship to traditional maritime 23 activities, and had the potential to disturb maritime commerce. The reach of Admiralty got even longer when the Court examined whether a fire from a laundry facility on a yacht moored in a marina, which subsequently spread through the land-based marina structures and neighboring vessels, supported admiralty 24 jurisdiction. In Sisson v. Ruby the Court concluded that even something as arguably minor, and as tenuously connected to maritime commerce, as a fire in a recreational 25 marina had the capacity to disrupt maritime commerce. Combined with a significant connection to traditional maritime activity (operation of a marina), this hypothetical capacity to disrupt maritime commerce was sufficient to support admiralty jurisdiction. 26 In 1995, in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., the Court affirmed that the requirements of location and connection with maritime activity must be met for admiralty jurisdiction to apply in any case, but in conjunction with a focused federal statute, stretched those tests to their logical extreme. In Grubart the basements of several buildings in Chicago s downtown Loop were flooded, allegedly at Sisson v. Ruby, 497 U.S. 358, 360 (1990). at Grubart, 513 U.S. at

8 because Great Lakes Dredge and Dock Company drove pilings into the riverbed above a 27 freight tunnel. Great Lakes sought to limit its tort liability under the Limitation of 28 Liability Act by invoking federal admiralty jurisdiction. Examining the state of admiralty jurisdictional holdings to date, the Supreme Court concluded that admiralty jurisdiction did attach under that case s circumstances. Historically, admiralty jurisdiction would not have applied in the case because the injury 29 was not wholly felt on navigable waters. In 1948, however, Congress had passed the 30 Extension of Admiralty Jurisdiction Act, popularly known as the Admiralty Extension 31 Act (AEA), to address damage ashore caused by vessels on navigable waterways. The AEA states that, The admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damages, to person or property, caused by a vessel on navigable 32 waters, even though the injury or damage is done or consummated on land. The AEA allows for a potential remedy under admiralty jurisdiction in all cases where a vessel at Grubart, 513 U.S. at 532 (citing The Plymouth, 70 U.S. at 35). 30 Extension of Admiralty Jurisdiction Act, 46 U.S.C (2007) ( The admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damages, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land. )

9 33 causes an injury. Congress intended for the AEA to end the concern over the sometimes confusing line between land and water so that the use of admiralty 34 jurisdiction would continue to be uniform and predictable. Under the AEA, the damage or injury must still be caused by a vessel on 35 navigable waters.... In Grubart, the Court found that the barge, which could be used 36 for transportation on navigable waters, was a vessel. Adhering to the Executive Jet precepts, the Court discussed the location and connection requirements that must be met 37 for admiralty jurisdiction to attach. For the location test to be satisfied, the tort must either occur on navigable water 38 or, under the AEA, a vessel on navigable waters must cause an injury on land. The Court broke the connection test into two parts that must be satisfied. One must first determine whether the incident has a potentially disruptive impact on maritime 33 See, Grubart, 513 U.S. at 532 (citing Executive Jet, 409 U.S. at 260; Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, (1963) (Court found that ship was liable in admiralty for injuries to longshoreman from slipping on beans spilled on a pier while the ship s cargo was being unloaded due to the AEA)) See, Pearson v. Ne. Airlines, Inc, 199 F. Supp. 538, 538 (S.D.N.Y. 1961) (the AEA did not extend admiralty jurisdiction over a plane crash on an island because the decedent [s]ustained no injury of any kind contributing to his death while the airplane was in flight over the sea.... ) Grubart, 513 U.S. at at

10 39 commerce by considering the general features of the incident. In addition, a court must decide if the activity giving rise to the incident shows a substantial relationship 40 to traditional maritime activity by looking at the general character of the activity. The Court found that the use of a crane on a barge afloat in navigable waters 41 satisfied the location test. Both parts of the connection test were satisfied as well. The Court found that the general features of damage by a vessel in navigable water to an underwater structure could have a potentially disruptive impact on maritime 42 commerce. The general character of the activity giving rise to the incident was characterized as being repair or maintenance work on a navigable waterway performed by a vessel, and the Court considered this to bear a substantial relationship to traditional 43 maritime activity. The Court held that admiralty jurisdiction did exist, and the combination of the location test and connection test became the test for admiralty 44 jurisdiction for all incidents occurring on navigable waters. After cruising through several backwoods creeks, the Court had rejoined the main course of the jurisdictional river. Impacts on maritime commerce remain the focus of admiralty jurisdiction at at 539. at

11 Air Crash At Belle Harbor, N.Y. On November 12, 2001 Grubart came into its own in the aviation context with Air Crash At Belle Harbor, 45 N.Y. on November 12, Here, the court looked to both Executive Jet and Grubart to help determine whether the case fell within its admiralty jurisdiction. In 2001, American Airlines Flight 587 took off from John. F. Kennedy 46 International Airport in Queens, New York, bound for the Dominican Republic. While over New York s Jamaica Bay, the first officer attempted to counter wake turbulence by cycling the plane s rudder from side to side; this caused the plane s rudder and vertical 47 stabilizer to break off and land in the bay. The plane crashed into the residential neighborhood of Belle Harbor, killing all 260 people on board and five people on the 48 ground, and injuring others. The desire to limit damages fueled the argument over the use of admiralty jurisdiction, because the application of state law, rather than federal 49 Admiralty tenets, would have limited available damages. The parties called on the District Court to decide which damages the passengers families could recover, by ruling whether admiralty jurisdiction attached A.M.C at at

12 To decide whether admiralty jurisdiction attached, the Court first applied the Executive Jet location test, by looking to see whether the tort occurred on navigable 50 waters of the United States. The loss of the vertical stabilizer and rudder occurred over the navigable water of Jamaica Bay, and made the deaths inevitable according to the 51 Court. Most of Flight 587's planned route was over water, a fact to which the court alluded in deciding that it was more than fortuitous that the incident occurred over a navigable water. These facts satisfied the location test. The two part connection test from Grubart was then used by the Court. 54 The court found that the accident had a potentially disruptive impact on maritime commerce because the sinking of an aircraft, or parts of an aircraft, into navigable water 55 creates a hazard to commercial vessels in the area. The Court then turned its attention to deciding whether the flight in and of itself had a significant enough relationship to maritime activity to met the Grubart test. Federal courts had previously found that, because transoceanic or island travel would have been conducted by vessels prior to air travel s being developed, those flights at at at at

13 56 bore a significant relationship to maritime activity. Because the people on Flight 587 would have been traveling by sea to the Dominican Republic if air transportation had not been available, the aircraft was found to be performing an activity that bore a significant 57 relationship to maritime activity. With both the location and connection tests satisfied, 58 the Court held that the case fell within its admiralty jurisdiction. The finding had significant impacts on the parties because it would allow the plaintiffs to recover additional damages that they would not have been able to recover without the finding of admiralty jurisdiction. A finding of admiralty jurisdiction was not the end of the inquiry however. Even in Admiralty courts have choices of remedies. Wrongful deaths that occur within 59 territorial waters had traditionally been governed by state wrongful death statutes. The question of which remedy applies was explored by the United States Supreme Court in Yamaha Motor Corp. v. Calhoun. There the Court allowed resort to a state wrongful 56 at 1353 (citing Miller v. United States, 725 F.2d 1311, 1315 (11th Cir. 1984) (flying between the Bahamas and Florida); Williams v. United States, 711 F.2d 893, 896 (9th Cir. 1983) (flying from California to Hawaii); Roberts v. United States, 498 F.2d 520, 524 (9th Cir. 1974) (flying from Los Angeles to Viet Nam); Hammill v. Olympic Airways, S.A., 398 F. Supp. 829, 834 (D.D.C. 1975) (flying over the Mediterranean Sea from Greek Island of Corfu to Athens)) at at Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, (1996) (case arose from the death of twelve-year-old Pennsylvania resident in a jet ski accident off the coast of Puerto Rico). 13

14 death statute, even though it had previously stated that general maritime law could apply 60 to cases involving deaths resulting from the violation of maritime duties. The difference between the various recovery schemes can obviously be significant, and was especially pronounced in Belle Harbor, because New York state law did not provide for recovery of non-pecuniary damages, but general maritime law did allow for such recovery. The victims families wanted general maritime law to be used so that they could recover those damages, and the defendants had argued that there was no admiralty jurisdiction, to limit damages. Having found admiralty jurisdiction, the Court looked to Yamaha to see if the state wrongful death remedy should be used. Noting that it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible 61 rules, the Belle Harbor court found that general maritime law should govern damages 62 in the case, and the families were allowed to recover non-pecuniary damages. 60 at 209 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409 (1970)) (ruling allowed parents of the twelve-year-old killed to recover for lost future earnings, loss of society, loss of support and services, and funeral expenses under applicable state law) at 213 (quoting Moragne, 398 U.S. at 387). Belle Harbor, 2006 AMC at

15 Why Care About Admiralty? Why care about Admiralty? The short answer, well illuminated by the Belle 63 Harbor court, is damages. In aviation crashes, convincing a court that admiralty jurisdiction attaches will almost certainly affect damages, and more. 64 In addition to impacts on damages, admiralty jurisdiction usually provides a longer statutory period, but 65 it denies a jury trial. Nonpecuniary damages are not available in personal injury suits by seaman (vessel crewmembers) under admiralty jurisdiction; they can be recovered by 66 passengers or guests on vessels. For death cases, the differences are not as marked, but 67 there are differences. The Death on the High Seas Act (DOHSA) limits the damages available in actions for wrongful death on the high seas. Prior to 2000, DOHSA applied to aviation crashes over international waters just as if they were shipboard deaths. 63 Ladd Sanger & Vickie S. Brandt, Flying and Crashing on the Wings of Fortuosity: The Case for Applying Admiralty Jurisdiction to Aviation Accidents Over Navigable Waters, 68 J. Air L. & Com. 283, 286 (2003) Tagliere v. Harrah s Ill. Corp., 445 F.3d 1012, 1015 (7th Cir. 2006) (plaintiff, injured when her stool collapsed on a river boat casino, would be barred from recovery if court refused to extend admiralty jurisdiction due to the statute of limitations for personalinjury suits under Illinois law). 66 Miles v. Apex Marine Corp., 498 U.S. 19, 31 (1990) (quoting 46 U.S.C. 762 (2006)) ( DOHSA, by its terms, limits recoverable damages in wrongful death suits to pecuniary loss sustained by the persons for whose benefit the suit is brought... This explicit limitation forecloses recovery of non-pecuniary loss, such as loss of society, in a general maritime action ). 67 Death on the High Seas Act, 46 U.S.C. 761, 762 (2006) (only pecuniary damages recoverable in an action for wrongful death that occurred on the high seas). 15

16 An amendment that year, however, excepted aviation crashes from the bulk of DOHSA s damages limitations. Some history is in order. DOHSA was enacted in 1920 to cover deaths occurring 68 on the high seas beyond a marine league [from the] shore of the United States. President Reagan increased the territorial seas of the United States to 12 miles in a 69 proclamation from Following the proclamation, some courts ruled that DOHSA is implicated when torts occur on waters over 12 miles off-shore from the United States 70 or its territories. Other courts interpreted the proclamation as not changing DOHSA s 71 designated waters. Although there is some disagreement over the extension of territorial 68 Executive Jet, 409 U.S. at ( Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States in admiralty.... ). 69 Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988) (President Reagan issued the proclamation to extend the territorial seas of the United States in order to advance the national security and other significant interests of the United States. ). 70 Michael J. Francesconi, Aviation and Aerospace: Law and Policy, 36 Int l Law. 507, 511 (2000) (citing In re Air Crash Off Long Island, N.Y. on July 17, 1996, 209 F.3d 200 (2d Cir. 2000) (Court found that Proclamation No extended the territorial waters of the United States to 12 miles off shore, and the Court held that DOHSA did not apply to TWA Flight 800 because it crashed 8 miles off the coast of Long Island)). 71 Helman v. Alcoa, 2009 AMC 1980 (C.D.Cal.) (Crash of Navy helicopter 9.5 miles from shore governed by DOHSA); Francis v. Hornbeck Offshore (1991) Corp., 1997 WL *1 (E.D. La. 1997) (accident occurred eight nautical miles from Louisiana s coast so DOHSA applies because Proclamation 5928, by its own terms, does not alter DOHSA s application beyond one marine league from shore and does not extend Louisiana s jurisdiction. ); Blome v. Aerospatiale Helicopter Corp., 924 F. Supp. 805, (S.D. Tex. 1996) (court found that the proclamation extended the United States territorial sea to twelve nautical miles and left the Texas three league boundary alone so the use of 16

17 waters, it is settled that aviation crashes that occur within DOHSA s designated waters 72 fall under it. In addition, if DOHSA applies, admiralty jurisdiction attaches, even in the absence of other maritime jurisdictional indicia, because the maritime nexus requirement is only relevant in cases where there is no controlling statute to the contrary.... [In 73 Executive Jet] DOHSA is specifically mentioned to illustrate such a statute. Finally, if DOHSA applies, courts may apply substantive federal maritime law even if the parties did 74 not allege admiralty jurisdiction. This would even include utilizing federal admiralty 75 choice of law principles in determining the law applicable to a case. The families of victims in aviation crashes where DOHSA applied therefore could not recover for loss of society or pre-death pain and suffering, even if a state or general maritime law would have allowed such damages. 76 The idea that DOHSA limited the recovery of some families in aviation disasters 77 disturbed members of Congress, and led to the Wendell H. Ford Aviation Investment & DOHSA depended on where the helicopter crash occurred)). 72 Zicherman v. Korean Air Lines Co., LTD., 516 U.S. 217, 230 (1996). 73 Mayer v. Cornell University, et al., 1997 U.S.App.Lexis When... plaintiffs bring a suit based upon diversity jurisdiction, we nevertheless apply substantive federal maritime law if we have admiralty jurisdiction. Preston v. Frantz, 11 F.3d 357, 358 (2d Cir. 1993) Zicherman v. Korean Air Lines Co, LTD., 516 U.S. 217, 230 (1996). H.R. Rep. No , at 2 (1999) ( Given the nature and speed of air travel, it is often a matter of happenstance as to where an aircraft crashes. The result is that a family s 17

18 st 78 Reform Act for the 21 Century in That act amended DOHSA to except aviation 79 crashes from its coverage, so that non-pecuniary damages are now available when the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of any State, or the District of Columbia, or the Territories 80 or dependencies of the United States.... Punitive damages, however, are still not 81 available under DOHSA. For commercial airplane crashes more than 12 miles from United States shores on the high seas, therefore, admiralty jurisdiction will apply, and a full range of typical state law recovery except for punitive damages will be in play. While there have been legislative proposals to alter the current DOHSA scheme even further, none has yet been enacted. 82 rights under the law depend on pure chance. ). 78 Wendell H. Ford Aviation Investment & Reform Act for the 12st Century, H. 603, 106th Cong., 404 (2000) (See, e.g., In re Air Crash Disaster Near Peggy s Cove, Nova Scotia on September 2, 1998, 210 F. Supp.2d 570 (E.D. Pa. 2002) (court dismissed claims for punitive damages from families of victims of the crash of Swissair Flight 111 because DOHSA applied). 82 See, e.g., S. 588, Cruise Vessel Security and Safety Act of 2009, which included an Amendment to the Death on the High Seas Act proposing to apply commercial aviation rule to all cases under DOHSA, and to eliminate restriction on punitive damages. While introduced in the Senate, that proposed amendment was stricken before the measure was reported out. 18

19 The Future Relationship of Admiralty Jurisdiction and Aircraft Accidents When an airplane crashes into navigable water while carrying out a traditional maritime activity, whatever that may be, it appears that admiralty jurisdiction will almost 83 certainly be found to attach. While there is room for argument, it appears more than likely that a substantial relationship to traditional maritime activity will continue to be the rule for most planned transoceanic flights. For example, aircraft travel from the Bahamas to Florida has been found to be a traditional maritime activity and result in 84 admiralty jurisdiction over a crash. An aircraft s making a trip that would normally be made by boat, however, does not necessarily support maritime jurisdiction. In a case involving the flight test of aircraft, which happened to be conducted by flying from the 85 mainland to an island, however, admiralty jurisdiction was rejected. Some circumstances may also allow for the use of the Admiralty Extension Act to extend admiralty jurisdiction over damage done by an aircraft, if the aircraft is considered 86 an appurtenance of a vessel. In Anderson v. United States, the Eleventh Circuit found See, e.g., Admiralty Law and Jurisdiction in Air Crash Cases, James W. Huston and Bill O Connor, 69 J. Air L. & Com. 299 (2004) th Miller v. United States, 725 F.2d 1311, 1315 (11 Cir.), cert. denied, 469 U.S. 821 (1984). 85 th United States Aviation Underwriters, F.3d, 2009 WL (10 Cir. 2009). 86 Anderson v. United States, 317 F.3d 1235 (11th Cir. 2003), cert. denied, 504 U.S. 965 (2003). 19

20 that admiralty jurisdiction attached for an incident ashore involving an aircraft, because the aircraft was an appurtenance of a Navy aircraft carrier. Maritime law... ordinarily treats an appurtenance attached to a vessel in navigable waters as part of the 87 vessel itself. Under Anderson, an aircraft can be considered an appurtenance of a vessel if it is [d]estined for use aboard a specifically identifiable vessel and is essential to 88 the vessel s navigation, operation, or mission. In Anderson the USS John F. Kennedy launched an armed carrier-based aircraft 89 for training exercises at Vieques Island, Puerto Rico. The aircraft dropped two bombs that were intended for a target range on the Atlantic Fleet Weapons Training Facility (AFWTF). The bombs missed the intended target and impacted an observation post on 90 the range, where the plaintiff was injured. The Court pointed out that the aircraft was 91 assigned to Kennedy and the personnel on board controlled the aircraft at all times. The Court also found that the aircraft was carrying out the Kennedy s mission in performing the training mission because it was testing the vessel s offensive capabilities when at 1237 (quoting Grubart, 513 U.S. at 535). at 1238 (quoting Gonzalez v. M/V Destiny Panama, 102 F. Supp.2d 1352, (S.D. Fla. 2000)) at at

21 92 performing air-to-ground strikes. Considering all these factors, the Court found that the 93 aircraft was an appurtenance of the vessel at the time the plaintiff s injuries occurred. The location test was met through the AEA because the injuries that occurred on land 94 were caused by an appurtenance of a vessel on navigable water. The two parts of the connection test were also satisfied, because the AFWTF closes twice a week to allow fishing vessels to get their catch, so the aircraft activity actually disrupted maritime commerce, and the Kennedy s activities had a substantial relationship to maritime commerce because it navigates the world s navigable waters and managed the flight operations of aircraft with the ordnance to be launched at sea. 95 Based on Anderson, it appears that an aircraft will be considered an appurtenance of a vessel if the aircraft is assigned to and housed on the vessel, the aircraft s operations are controlled by the personnel on board the vessel at all times, and 96 the aircraft is carrying out the vessel s mission at the time the injury occurs. Whether 92 ( [e]mbarked aircraft and their ordinance are the carrier s primary offensive and defensive weapons.... The aircraft are an extension of the ships ears (electronic monitoring), eyes (surveillance), and provide offensive and defensive capability (air-to-air combat and air-to-ground strike). ) at at Scott v. Trump Ind., Inc., 337 F.3d 939, (7th Cir. 2003) (citing Anderson, 317 F.3d at 1238). (Scott dealt with an injury caused when a life raft being lifted by a crane hit a person in the head. The Court found that a crane not attached to the ship was not an appurtenance of the vessel because it was not physically connected to the vessel in any 21

22 admiralty jurisdiction is extended in such cases seems to depend on the specific facts and circumstances of the cases. For example, the crash on land of a helicopter that scouts tuna locations for a fishing boat could involve admiralty jurisdiction if the helicopter was assigned to and kept on the ship, under the operational control of the ship s personnel at all times, and was carrying out the mission of the vessel (say, looking for tuna to catch) at the time of the crash. On the other hand, an aircraft only temporarily aboard a carrier, say conducting carrier qualification training, might not be considered part of the ship s weapons system and therefore not be an appurtenance of the vessel. Arguably the finding of appurtenance must be supported by something like permanent or at least long term association with the vessel in question, and the performance of one of the vessel s 97 maritime functions. AEA arguments are not the only potential grist for the jurisdictional mill. When Congress amended DOHSA in 2000, it limited the application of the amended section to a 98 commercial aviation accident. Courts will have to decide how to interpret this phrase as they look to the amended section of DOHSA. The United States District Court for the Southern District of Texas was forced to decide if the phrase commercial aviation way and not under the vessel s control. It also found that the life raft being lifted by the crane was also not an appurtenance because the raft was not under control of the vessel s personnel at the time of the injury.) 97 Anderson, 317 F.3d at 1238 n Wendell H. Ford Aviation Investment & Reform Act for the 12st Century, H. 603, 106th Cong., 404 (2000). 22

23 accident encompassed the crash of a helicopter transporting oil workers in the Gulf of 99 Mexico in The Court found that the intention of amending DOHSA was to allow 100 for more recovery of damages. In addition, the Court found that the helicopter crash constituted a commercial aviation accident under the amended provisions of DOHSA because the helicopter was ferrying passengers in an aircraft as part of a commercial 101 venture. On the other hand, at least one district court has found that commercial 102 aviation does not include ferrying an aircraft for delivery from one point to another. Finally, in the case of helicopter transport to and from offshore oil platforms, courts will have to decide whether application of the Outer Continental Shelf Lands Act (OCSLA), 103 trumps admiralty jurisdiction. OCSLA governs cases involving accidents actually occurring on oil platforms, and applies state law as surrogate federal law on those 104 platforms. An accident involving a transport helicopter after it has landed on a 99 Brown v. Eurocopter S.A., 111 F. Supp. 2d 859, 860 (S.D. Tex. 2000) (case occurred shortly after Congress amended DOHSA) at 863 n.1. at Eberli v. Cirrus Design Corp., 615 F.Supp (S.D.Fl. 2009). 43 U.S.C th Alleman v. Omni, 2009 AMC 1817, 1824 (5 Cir.) (quoting Rorigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 366 (1969). 23

24 platform would therefore be governed by OCSLA, rather than admiralty jurisdiction under either a Grubart or DOHSA theory. In any event, courts will have to decide, on a case-by-case basis, whether the amended provisions of DOHSA apply, so there is certainly a potential for varying interpretations. Such variation could detract from the maritime uniformity that admiralty jurisdiction seeks to promote, and courts will have to be mindful of that. As the Supreme Court alluded to in Executive Jet, Congress could enact legislation 105 to govern accidents involving aircraft that crashed into water or anywhere else. Legislation along these lines would achieve uniformity and predictability for people involved in what used to be traditional maritime commerce. Congress did not like the way DOHSA affected the recovery of damages by victims families, so it acted by 106 amending DOHSA. There is always the potential for Congress to disagree with the application of admiralty jurisdiction so strongly that it will act to change it legislatively. Conclusion Admiralty jurisdictional arguments will continue to play a role in aircraft accidents involving bodies of water. It is important to understand the bases for admiralty jurisdiction and its utility in a particular case, because the tests for extending admiralty Executive Jet, 409 U.S. at 268. H.R. Rep. No , at 2 (1999). 24

25 jurisdiction are based on its purposes. A clear understanding of the nexus of aircraft and maritime commerce will be critical for dealing with these issues in the future. 25