Committee Perspectives Aerospace Law Committee Upon takeoff, however, the plane struck a flock Where the Sea Meets the Sky of seagulls, lost power, crashed, and ultimately sank in the navigable waters of Lake Erie. Id. at 250. Executive Jet, invoking federal admiralty jurisdiction, subsequently sued the city of Admiralty Jurisdiction Cleveland, alleging that the crash was caused by their negligent failure to keep the runway free of birds or to adequately warn of their presence. Id. at 251. in the Aviation Case The Supreme Court, in refusing to extend admiralty jurisdiction, noted two principal shortcomings of a mechanical application of by Lisa J. Savitt the “locality of the wrong” test to aviation ac- cidents. First, the fact that a plane crashes into navigable waters is entirely fortuitous and has nothing to do with the underlying tort. Id. at 266. That a plane bound from Boston to Phila- delphia crashes into Boston Harbor instead of Courts and Congress have struggled for de- with respect to maritime accidents and, in more Massachusetts proper should not impact the cades with the question of how to treat aviation recent years, with respect to aviation accidents. recovery of the next of kin of those passengers accidents which occur in or near a body of wa- DOHSA provides: “Whenever the death of a killed. Id. Second, it is impossible to apply the ter. That an airplane crash occurs over “navi- person shall be caused by wrongful act, ne- “locality of the wrong” test with any degree of gable waters” does not automatically turn an glect, or default occurring on the high seas certainty, because in aviation accidents it is airplane negligence case into a general mari- beyond a marine league from the shore of any often unclear where the wrong actually took time action. Deciding which law applies to an State… the personal representative of the de- place. The facts of Executive Jet provide an ex- aviation accident is critical in determining cedent may maintain a suit for damages in the cellent illustration of this second difficulty. such important factors as application of state district courts of the United States, in admi- The plaintiffs contended that the wrong “took liability and damages law, the extent of recov- ralty.” Id. at §761. place” when the plane crashed into Lake Erie. ery for non-pecuniary damages, whether there In the early days of aviation, courts began to The defendants, on the other hand, contended will be a jury trial and whether a plaintiff will be extend admiralty law to aviation accidents on the that the wrong “took place” when the plane hit allowed to seek punitive damages. This article high seas. Aviation cases originally related to ad- the flock of seagulls. As the Court noted, decid- will examine some of the recent developments miralty only to the extent that they were brought ing the dispute is unnecessary: “[it] is enough in this area. in federal court pursuant to DOHSA. The prob- to note that either position gives rise to the lems inherent in extending the application of problems inherent in applying the strict local- Death on the High Seas Act substantive maritime law to non-DOHSA avia- ity test of admiralty tort jurisdiction in avia- The Death on the High Seas Act (DOHSA), tion cases continue to plague the courts. tion accident cases.” Id. at 267. now codified at 46 U.S.C. app.§§761–68 (1994), Consequently, the Court abandoned a me- was enacted in 1920 to provide a remedy to Executive Jet Decision chanical application of the locality of the wrong families who lost loved ones at sea. DOHSA Courts struggled in deciding what law to apply test in favor of a “significant relationship to has been the source of much litigation, both when aircraft crashed in bodies of water. The traditional maritime activity” test. Id. at 268. Supreme Court began to clarify the issue in Specifically, the Court held that unless the Executive Jet Aviation, Inc. v. City of Cleveland, wrong bears a significant relationship to tradi- 409 U.S. 249 (1972). In 1968, an airplane owned tional maritime activity, “claims arising from and operated by the Executive Jet Aviation airplane accidents are not cognizable in admi- Company took off from Burke Lakefront Air- ralty.” Id. In deciding Executive Jet, the Court port in Cleveland, Ohio, bound for Portland, held that no such relationship existed when a Maine, and ultimately, White Plains, New York. land-based plane flies solely between points within the continental United States. Id. at 272–274. Yet the Supreme Court provided little guidance for applying this new “significant Lisa J. Savitt is a partner in the Products Liability/Mass Tort/Insurance Practice relationship” test to other scenarios. Conse- Group of Blank Rome LLP in the firm’s Washington, D.C. office. She has a com- quently, there has been a great deal of litiga- mercial and international litigation practice with an emphasis on aviation and tion on the scope of this test. products liability. Ms. Savitt wishes to thank Randi Wolf, an associate in Blank Rome LLP’s Cherry Hill office, for her invaluable contribution to this article, Outer Continental Shelf Lands Act with a note of appreciation to Daniel Shamah for his assistance. DOHSA and the Outer Continental Shelf Lands © 2004 DRI. All rights reserved. For The Defense Aerospace Law Committee Committee Perspectives Act (OCSLA), 43 U.S.C. App. §1331 et seq., tiffs argued that the manner of death was the ants moved to dismiss the plaintiffs’ claims often come into conflict. OCSLA in part makes determining factor for the locality issue under for non-pecuniary damages. In re Air Crash state law applicable to the subsoil and seabed maritime law. Judge Kent, in affirming his earlier off Long Island, New York, on July 17, 1996, of, and the platforms erected on, the Outer decision, noted that the “place” of the victim’s 209 F.3d 200 (2d Cir. 2000). Continental Shelf. This was seen in two related death was not the “lynchpin” for determining The central issue to be decided was whether cases arising out of the ferrying of passengers locality, but again, “whether the alleged neg- the crash occurred on the “high seas” as per from one oil platform to another in the Gulf of ligence ‘became operative while the aircraft DOHSA. Ultimately, Judge Robert Sweet de- Mexico. Williamson v. Petroleum Helicopters, was on or over navigable waters.’” Order Deny- cided that the crash did not occur on the high Inc., 32 F.Supp.2d 456 (S.D. Tex. 1999), and ing Plaintiff Richard’s Motion to Reconsider at 4, seas and that DOHSA did not apply. Defend- Brown v. Eurocopter, S.A., 38 F.Supp.2d 515 Williamson (No. G-97-301) (citing Smith v. Pan ants appealed to the Second Circuit, which af- (S.D. Tex. 1999), were wrongful death actions Air Corp., 684 F.2d 1102, 1109 (5th Cir. 1982)). firmed in a decision that demonstrates the filed in the Southern District of Texas (Gal- A second suit was filed by the family of the role that maritime terminology and historical veston Division) that arose from the crash of a pilot. Brown v. Eurocopter, S.A., 38 F.Supp.2d usage can play in an aviation accident. As shown helicopter ferrying passengers near an oil plat- by the Second Circuit’s reasoning, a few miles form about 25 miles southeast of Galveston. In State law remedies for can vastly impact the damages the plaintiffs an attempt to make an emergency landing, the may recover. pilot lost control of the helicopter, collided with damages, particularly those of In a lengthy decision, the Second Circuit an oil platform and then plunged into the Gulf. reviewed the legislative history of DOHSA, The pilot and two passengers were killed. Texas, are often much greater observing that Congress intended to create a The plaintiffs in both cases argued that the statute that allowed recovery for wrongful death contact with the platform was the same as than damages recoverable on the high seas. Congress also wanted to pre- contact with land and that, therefore, OCSLA serve existing state remedies for wrongful death applied. This would mean that the law of the under DOHSA. by “simply cover[ing] waters that are not now adjacent state—Texas—would govern. State covered.” In re Air Crash off Long Island, 209 law remedies for damages, particularly those 515 (S.D. Tex. 1999). In Brown, plaintiffs also F.3d at 204. To achieve this, Congress passed of Texas, are often much greater than dam- filed a motion for partial summary judgment, a law that created a remedy for wrongful death ages recoverable under DOHSA. making essentially the same arguments for “occurring on the high seas beyond a marine Williamson was brought in 1997 by the fami- application of OCSLA. Judge Kent emphasized league from the shores of any State, or the lies of the two passengers killed in the crash. in his decision in that case that the “mechani- District of Columbia, or the Territories or de- Defendants filed a partial summary judgment cal problems suffered by Brown’s helicopter pendencies of the United States.” 46 U.S.C. motion on the basis that DOHSA, not OCSLA originated and reached the point of crisis above App. §761. was the applicable law. Williamson, 32 F.Supp.2d the high seas.” Id. at 517. The TWA 800 flight crashed about eight nau- at 457. DOHSA would prohibit plaintiffs’ re- tical miles (beyond a marine league) from the covery of non-pecuniary and punitive dam- TWA Flight 800 shore of New York (a marine league is approxi- ages.