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 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 to Phila- delphia crashes into Boston Harbor instead of Courts and Congress have struggled for de- with respect to maritime accidents and, in more 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 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 , 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 , 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, . 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 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

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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 , New York, on , 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. Judge Samuel Kent, following the law of The geographic reach of DOHSA was exten- mately three miles). However, the question still the Fifth Circuit in applying maritime law, sively analyzed and addressed by the United remained whether the crash occurred on the granted the motion. He found that the mari- States Court of Appeals for the Second Circuit “high seas.” DOHSA does not define the term, time locality requirement under traditional following the crash of TWA Flight 800 in July “high seas,” and the existing case law allowed maritime analysis was satisfied because the 1996. The crash occurred about eight nautical for numerous interpretations. The plaintiffs problems in the aircraft occurred while the miles off the coast of Long Island, New York, contended that “high seas” meant international helicopter was over the Gulf of Mexico. Id. at shortly after the plane departed from John F. waters (those waters lying beyond the United 460. Judge Kent also found that there was a Kennedy International Airport in New York. States territorial waters), while the defendants significant and traditional relationship to mari- The flight was bound for , , and argued that “high seas” meant all waters be- time activity—also part of the maritime law Rome, . All 230 persons on board died in yond the low-water mark, but excluding waters analysis—in ferrying passengers from oil plat- the crash. within the territorial bounds of state jurisdic- form to oil platform. Id. at 459–60. The estates of 213 passengers brought tion, where state wrongful death statutes would In an interesting twist, plaintiffs filed a mo- wrongful death suits, which were consoli- apply. tion for reconsideration based on the different dated by the Judicial Panel on Multidistrict While the political differentiation between diagnoses of the two passengers’ deaths. The Litigation in the Southern District of New “territorial” and “international” waters seems autopsy reports showed that one of the pas- York. The question arose whether DOHSA or clear for purposes of determining whether sengers died of skull fractures while the other state wrongful death law controlled the litiga- DOHSA applies in an aviation case, the geo- passenger died from drowning. Plaintiffs argued tion. If damages were calculated under state graphical distinction between these waters that the passenger who died of skull fractures law, plaintiffs would be entitled to non-pe- bears mention. Traditionally, state territorial should have OCSLA applied to his case, as the cuniary damages. At the time of the lawsuit, waters lie within three nautical miles from means of death showed that the injury oc- DOHSA did not provide for recovery of shore, except for the states of Texas and curred on the platform, not in the water. Plain- non-pecuniary damages, and the defend- Florida, both with territorial waters extending

August 2004 Committee Perspectives Aerospace Law Committee three leagues seaward. In re: Air Crash off Long court’s evaluation of DOHSA following the the shore. The amendment retained the DOHSA Island, 209 F.3d at 205. Beyond the state ter- TWA 800 crash, Judge James Giles of the East- provision denying recovery for punitive dam- ritorial waters lie the United States territorial ern District of Pennsylvania began by examin- ages. The legislation was made applicable to waters, which were created in 1988 by Presi- ing DOHSA’s legislative history to determine any death occurring after July 16, 1996—one dential Proclamation No. 5928 to extend 12 the meaning of the “high seas.” day before the TWA 800 crash. nautical miles from the shore of any state. In After looking to the legislative history, the 1999, the United States territorial waters were court candidly noted that both DOHSA’s leg- Cases Applying 2000 extended to 24 nautical miles. See Presidential islative history and United States Supreme Amendments to DOHSA Proclamation No. 7219, 64 Fed. Reg. 48,701 Court case law at the time DOHSA was en- The scope of those newly permitted remedies (August 2, 1999). Accordingly, the “high seas” acted were equally unhelpful in consistently was explored in a series of cases arising out of contemplated by DOHSA now begin approxi- defining “high seas.” In re Air Disaster near the crash of EgyptAir Flight 990, scheduled to mately 24 nautical miles from shore, in the in- Peggy’s Cove, 210 F.Supp.2d at 578. However, travel from to , , in ternational waters beyond the United States the court found some guidance in existing October 1999. That flight crashed into the Atlan- territorial waters. In these waters, DOHSA tic Ocean approximately 60 miles from Nan- provides the exclusive remedy for wrongful A few miles can vastly tucket Island. There were no survivors. death. Multiple wrongful death lawsuits were con- Using rules of statutory interpretation, the impact the damages the solidated into a multidistrict litigation action in Second Circuit determined that “high seas” and the Eastern District of New York. It was undis- “beyond a marine league” must have indepen- plaintiffs may recover. puted that DOHSA provided the exclusive rem- dent meaning and approved of the plaintiffs’ edy because the crash had occurred on the “high interpretation of the term, which defined “be- maritime case law, which had applied DOHSA seas,” well beyond state and United States yond a marine league” as a geographical loca- to nautical accidents occurring within foreign territorial waters. Because DOHSA had been tion and “high seas” as a political boundary territorial waters. amended in 2000 to apply retroactively to deaths subject to change. In accordance with this frame- Ultimately, the court decided that the term occurring after July 16, 1996, to allow for re- work, the Second Circuit held that “high seas” “high seas” must refer to all waters beyond covery of non-pecuniary damages in wrongful meant international, non-territorial waters. United States waters and must include another death suits arising out of commercial aviation The court found this definition consistent with country’s territorial waters. Such an interpre- accidents, the court was required to analyze the purpose of DOHSA (to create a wrongful tation was consistent with the statutory pur- the range of newly permitted damages and to death remedy where none existed), because pose of creating a remedy for wrongful death identify the persons entitled to recover those common law remedies already existed for wrong- where no remedy would otherwise exist. Ac- damages. ful death in both state and federal territorial cordingly, DOHSA was held to apply to the The court first addressed the question of waters. Thus, the court ultimately held that crash. what types of damages could be recovered as DOHSA did not apply to the cases brought by pecuniary damages in a wrongful death ac- the victims of TWA 800 since that crash oc- 2000 Amendments to DOHSA tion under DOHSA. In re Air Crash Near Nan- curred about eight miles from shore, within The analysis in the Swissair case followed the tucket Island, Massachusetts on October 31, the United States territorial waters. 2000 amendments to DOHSA which, amongst 1999, 2002 WL 32302598 (E.D.N.Y. May 23, other things, created a new remedy for victims 2002). In that opinion, the adult children sur- Swissair Flight No. 111 of commercial aviation disasters and their fami- vivors of decedent parents sought to recover A similar issue was presented in wrongful death lies. The 2000 amendment came about after a “economic losses for care and comfort.” Id. at suits brought following the crash of Swissair series of recent over-water aviation crashes, *1. The plaintiffs proffered an extensive eco- Flight 111 in September of 1998. In re Air Crash starting with Korean 007 and TWA nomic analysis, detailing the value of their Disaster Near Peggy’s Cove, on Sep- Airlines 800. Signed on April 5, 2000, Sections claimed loss, ranging from the cost of their tember 2, 1998, 210 F.Supp.2d 570 (E.D. Pa. 761 and 762 of DOHSA were amended by Sec- deceased parents’ services as child care givers 2002). , carrying passengers tion 404 of the Wendell H. Ford Aviation In- and chauffeurs, to teachers, social directors from New York’s John F. Kennedy Airport to vestment and Reform Act for the 21st Century and companions. , , crashed off the coast of (Air 21). Pub. L. No. 106-181, §404, 114 Stat. The court was quick to note that pecuniary Nova Scotia into Canadian territorial waters. 131 (2000). loss under DOHSA includes damages for loss There were no survivors. The amendment provides that DOHSA is of support, loss of services, loss of parental In the multidistrict litigation in the Eastern no longer controlling in aviation accidents aris- nurture, loss of inheritance and funeral or District of Pennsylvania, another federal court ing out of crashes into the high seas, defined burial expenses. It also noted that DOHSA considered the scope of DOHSA’s ill-defined now as 12 nautical miles or closer to the shore of places no age limit on recovery for these losses term, “high seas.” The court needed to decide any state. DOHSA was further amended to allow and makes no distinction between minor and whether an air disaster over another nation’s the recovery of nonpecuniary damages—spe- adult children. However, the court limited the sovereign waters occurred on the “high seas” cifically defined as damages for loss of care, damages recoverable by these adult children, for purposes of applying DOHSA to ensuing comfort and companionship—should the crash stating that claims for damages for the dece- litigation in the United States. Much like the occur more than 12 nautical miles away from dents’ roles as “Social Directors” “Teachers” and

For The Defense Aerospace Law Committee Committee Perspectives

“Ad v i s o r s” w o u l d n o t b e r e c o v e r a b l e b y a d u l t s “damages for loss of care, comfort and com- not general aviation accidents. Judge Kent except in cases of true dependency. The court panionship,” but did not further define those examined the meaning of the words “com- also rejected the claim for loss of “companion- terms. The court embarked upon an analy- mercial” and “commercial activities” citing ,” finding that those damages duplicated sis of the surviving adult children plaintiffs’ to Black’s Law Dictionary, which defined these the plaintiffs’ claims for non-pecuniary dam- relationships with their aging parents. It also terms as having a connection with commerce ages. looked to the relationship between the dece- or activity that is carried on for profit. Brown, The court then addressed the question of dents and their own parents, who were also 111 F.Supp.2d at 862. In granting plaintiffs’ who can recover damages under DOHSA. In plaintiffs in the case. Excluding the value of motion, Judge Kent stated that he did not be- re Air Crash Near Nantucket Island, Massachu- mental anguish or grief—which the court lieve that the intent of Congress was to favor setts on October 31, 1999, 2003 WL 21913235 said are not elements of loss of society dam- victims of commercial air accidents over vic- (E.D.N.Y. August 8, 2003). DOHSA permits a ages—the court carefully evaluated the tims of commercial aviation accidents in gen- personal representative to maintain a suit for amount of time the plaintiffs spent with the eral. Id. at 863. damages for the exclusive benefit of the dece- decedents in their day-to-day lives, the nature dent’s wife, husband, parent, child or depen- of their interactions, and also looked to other Practical Tips dant relative. A decedent’s stepchildren sought cases which had evaluated the loss of a par- There are many aspects to examine when an recovery under DOHSA. Because DOHSA spe- ent/child relationship. Considering the life ex- airplane crash occurs in or near a body of cifically enumerates the individuals who qualify pectancies of the decedents, the court then water. Carefully review the complaint to de- as beneficiaries, the court would not alter or fashioned a monetary award for each of the termine whether the plaintiff has alleged that expand that class of persons and held that step- surviving children and parents. This decision admiralty law applies. Look at the activity children could not bring suit under DOHSA. was a case of first impression and provides a involved to see if the flight in question can ar- Notably, the plaintiffs involved were adults helpful framework for valuing non-pecuniary guably be said to bear a significant relation- who had limited ongoing contact with the de- damages claims under DOHSA. ship to traditional maritime activity. Be sure cedent and who were not financially dependent The amendments to DOHSA are also be- to assert all possible defenses including stat- upon the decedent. If the case had involved ing challenged in the general aviation context. ute of limitations, which is only two years minor stepchildren who were financial de- In Brown v. Eurocopter, S.A., 111 F.Supp.2d under DOHSA. pendents, the result may have been different, 859 (S.D. Tex. 2000), discussed above, the since DOHSA permits recovery by “depen- plaintiffs sought to have the amended DOHSA Conclusion dent relatives.” apply so that plaintiffs would not be limited to Recovery for injury or death at sea continues to In a third opinion arising from the Egypt- pecuniary damages. Plaintiffs’ argument was evolve. With the 2000 amendment to DOHSA, Air 990 crash, the court addressed the scope that the helicopter flight was “commercial Congress attempted to remedy the inequities of non-pecuniary damages recoverable under aviation” because the ferrying of passengers that families suffered when their loved ones DOHSA. In re Air Crash Near Nantucket Is- was performed pursuant to a contract for hire died in an aircraft that crashed at sea rather land, Massachusetts on October 31, 1999, under Part 135 of the Federal Aviation Reg- than on land. Despite this legislation, questions 307 F.Supp.2d 465 (E.D.N.Y. 2004). In the ulations. Defendants argued that Congress and challenges remain for those parties faced amendment to DOHSA in 2000, the statute intended the term “commercial aviation ac- with litigation based on the path that a flight defined non-pecuniary damages to mean cident” to mean commercial disasters, takes in or around water.

August 2004