- 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:
- the cause of the accident likely occurred over the navigable waters of San Francisco Bay
- 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.