United States: Seventh Circuit Finds Admiralty Jurisdiction In Asiana Airlines Lawsuits

Judy Nemsick is a Partner and Leonie Huang is an Associate in Holland & Knight's New York office.

HIGHLIGHTS:

  • The U.S. Court of Appeals for the Seventh Circuit confirms that admiralty jurisdiction is available in aviation cases when an injury sustained on land is caused by events over navigable waters, provided that the cause bears a "substantial relationship to traditional maritime activity."
  • The court found that Asiana Flight 214 had a sufficient maritime nexus because it was a "trans-ocean flight, a substitute for an ocean-going vessel."

In litigation arising from the July 2013 accident of Asiana Flight 214 at the San Francisco International Airport, the U.S. Court of Appeals for the Seventh Circuit reversed the District Court's remand decision, holding that there was federal admiralty jurisdiction.1 Applying the test set forth by the U.S. Supreme Court in Executive Jet Aviation, Inc. v. Cleveland2 and refined in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,3 the three-judge panel determined that:

  1. the cause of the accident likely occurred over the navigable waters of San Francisco Bay
  2. the accident bore a substantial relationship to traditional maritime activity because it occurred during a flight across the Pacific Ocean

District Court's "Inevitability" Test Rejected

In remanding the lawsuits, the District Court had found that "admiralty jurisdiction is available only when an accident becomes inevitable while the plane is over water," and insisted on proof that the record show beyond a reasonable doubt that the aircraft was doomed while flying over water. (See Holland & Knight's alert, " Aviation Defendants Contend with Challenges to Federal Jurisdiction," June 6, 2014.) The Seventh Circuit disagreed with this "inevitability standard," finding that it "lacks a provenance in the Supreme Court's decisions or in any appellate opinion." Significantly, the panel held that the jurisdictional allegations (including those in Boeing's notice of removal) "control unless it is legally impossible for them to be true (or to have the asserted consequences)."

The plaintiffs' own theory of liability, which apportioned blame to Boeing based on disengagement of the autothrottle, was based on conduct that occurred 4.5 nautical miles from the seawall. The panel noted that "if Boeing is liable at all, it must be because something about how this system was designed or explained created an unacceptable risk of an accident – and the system's performance ... occurred before the plane hit the seawall." Moreover, the NTSB's accident report (issued after the District Court decision) had concluded that a collision was certain about 10 seconds before impact. Given these jurisdictional allegations and the NTSB's findings, the panel determined that Boeing could "show that this accident was caused by, or became inevitable because of, events that occurred over navigable water."

Admiralty Jurisdiction Test Satisfied

The Seventh Circuit's analysis was guided by Grubart's holding that admiralty jurisdiction is available when an injury sustained on land is "caused by a vessel on navigable water," provided that the cause bears a "substantial relationship to traditional maritime activity." In parsing this language, the panel determined that it did not matter that the injury here was caused by events that occurred over – as opposed to on – navigable waters. The panel found persuasive that the Death on the High Seas Act, which governs deaths that are caused by acts occurring on the high seas, has been applied by the U.S. Supreme Court to a helicopter accident on the ocean that resulted from events over water. In that case, Offshore Logistics, Inc. v Tallentire,4 the Supreme Court treated death cases caused by an aircraft over water the same as an action resulting from injury-causing conduct on the water.

Nor did it make a difference that the "vessel" was an aircraft. As recognized by the court, "[a]n airplane, just like an ocean-going vessel, moves passengers and freight from one continent to another" and "crosses swaths of the high seas that are outside of any nation's territory, and parts of the seas adjacent to the United States but outside any state's territory."

Lastly, in accord with dicta from Executive Jet, the panel concluded that the accident had a significant relationship to traditional maritime activity because Asiana Flight 214 "was a trans-ocean flight, a substitute for an ocean-going vessel." It was not a land-based aircraft traveling between points in the United States. The Seventh Circuit's decision joins the majority of post-Executive Jet appellate cases finding a sufficient maritime connection based on trans-ocean flight activity.5

No Federal Officer Jurisdiction

While the panel reversed the lower court's decision relating to admiralty jurisdiction, it affirmed the District Court's holding regarding the inapplicability of federal officer jurisdiction. Under Section 1442(a)(1), an action may be removed to federal court by "any person acting under [a federal] officer." Boeing argued that it was "acting under" the Federal Aviation Administration (FAA) when it analyzed the adequacy of its autopilot and autothrottle systems using FAA-approved procedures and certified that the systems met FAA requirements. Boeing also contended that it carried out certification functions as permitted by the FAA in lieu of having FAA inspectors check whether every aircraft design meets every particular of every federal rule and policy.

The court was unpersuaded that Boeing's "self-certification" rose to the level of "acting under" the FAA. It pointed out that "[e]very regulated firm must use its own staff to learn whether it has satisfied federal regulations," and noted that there was an exceedingly long list of people, including every employer with a federal contract, who must self-certify that they comply with federal regulations. The panel found the key distinction to be "rule making," rather than "rule compliance." To reach "acting under" status, delegation would at least require rule-making authority, and not just compliance with existing rules. Here, the FAA does not confer on the manufacturers the power to make rules for airworthiness. The panel noted that if the FAA gave a manufacturer the power to issue a conclusive certificate of airworthiness, i.e., in that it could not be challenged by the FAA or a court, this scenario "might suffice." The court confirmed, however, that a manufacturer's self-certification "does not prevent either a court or the FAA itself from taking a fresh look and reaching a contrary conclusion."

Admiralty Jurisdiction Remains a Challenging Inquiry

As posited by the decision's author, Circuit Judge Easterbrook, the relationship between aviation accidents and admiralty jurisdiction has been "fraught" ever since Executive Jet "modified the former situs requirement and asked, not where a wreck ended up (land or water), but whether the events leading to the accident have enough connection to maritime activity." Asiana Flight 214 reflects the challenging jurisdictional analysis courts face in admiralty cases involving aircraft, and further demonstrates that whether injuries are ultimately sustained on land or water is less important than the location of the injury-causing events and their relationship to traditional maritime activity.

Footnotes

1. Lu Junhong v. Boeing Co.__F.3d __, No. 14-1825, 2015 WL 4097738 (7th Cir. July 8, 2015).

2. 409 U.S. 249 (1972).

3. 513 U.S. 527 (1995).

4. 477 U.S. 207 (1986).

5. See, e.g., Miller v. United States,725 U.S. 1311, 1315 (11th Cir. 1984); Williams v. United States, 711 F.2d 893, 896 (9th Cir. 1983); Roberts v. United States, 498 F.2d 520, 524 (9th Cir. 1974).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions