Maritime Law Applies to Air Disaster Deaths on Dry Land

In a lengthy decision addressing several choice-of-law issues, the U.S. District Court for the Southern District of New York ruled that maritime law applied to all of the passengers that died when American Airlines Flight 587 crashed shortly after take off from John F. Kennedy International Airport bound for the Dominican Republic on November 12, 2001. 

Less than two minutes after take-off, the Airbus Industrie A300-600 (“Airbus”) shed its vertical stabilizer, which fell into Jamaica Bay, New York.  The aircraft itself ultimately crashed into a residential area called Belle Harbor in the Borough of Queens, New York.  All 251 passengers, the crew of nine, and five people on the ground were killed.  The accident caused additional personal injuries and property damage on the ground.  Various actions were consolidated before Judge Robert W. Sweet in In re: Air Crash at Belle Harbor, New York on November 12, 2001, 2006 WL 1288298 (SDNY).

Despite the impact of the aircraft into solid land in the territory of the United States, the district court concluded that maritime law controlled the issue of recoverable damages.  In reaching what - at least on the surface – appears to be an incongruous decision, the court relied on two factors it deemed determinative of maritime jurisdiction:

1.    The potential  impact of the accident on maritime commerce and
2.    The nature of the activity giving rise to the accident.

With respect to the first prong, the court relied primarily on the hazard to marine navigation posed by the vertical fin of the aircraft, fell into and sunk into Jamaica Bay, in the inland waters of the United States.  The second prong was deemed satisfied by the primarily over-water nature of the flight from New York to the Dominican Republic, which the court ruled bore a significant relationship to a traditionally maritime activity.

Under applicable maritime law, the court held that victim’s families may recover for loss of love, care, and companionship.  By comparison, New York’s wrongful death statute would not have allowed claims for these elements of damages and would, technically, only allow for the recovery of pecuniary damages.  Accordingly, this ruling, if undisturbed, represents a significant increase to the value of plaintiff’s cases.

Commentary:  One can only wonder what decision the court might have reached had the vertical fin of the aircraft not fallen into navigable waters, arguably leaving only one prong of the above test satisfied.  Would the court have nonetheless relied o1n the traditionally maritime nature of the flight over the ocean?  Alternatively, since prong one calls only for potential effects on maritime commerce, perhaps the crash of any flight otherwise destined to fly primarily over navigable waters could nonetheless pass this test?  This case represents yet the latest tension between the law of aviation and that of the sea.  Until Congress enacts some clarifying legislation, it seems unlikely that any U.S. court will soon rule that an aircraft is not a boat.

Denying Boarding- Airline’s Summary Judgment Motion Denied.

Since September 11, 2001, numerous decisions have examined the issue of denied boarding of passengers that are perceived to be a threat to the safe operation of the aircraft.  Most of these cases involve passengers of Middle East descent or dark complexion and allegations of improper racial profiling.  The recent decision in Dasrath v. Continental Airlines, Inc, 2006 WL 372980 (D.N.J. 2006), shows that the airline’s discretion in this area is not unfettered. 

The dark-complexioned plaintiff, Dasrath, a United States citizen born in Guyana, was removed from a Continental flight with two other dark-complexioned men who were allegedly acting suspiciously.  Although it seemed that the action of the other two passengers could be considered objectively suspicious, Dasrath may have been guilty by little more than association.  The United States District Court of New Jersey determined that the propriety of the airline’s conduct under federal airline regulations is subject to an objective test, and the airline’s discretion is protected so long as it acted in good faith and its decision was rational.  The “objective assessment of . . . [an airline’s] decision must take into account all the circumstances surrounding the decision, including the . . . facts known at the time, the time constraints under which the decision is made, and . . . the general security climate in which events unfold.” Id.   Nevertheless, the court stated that “skin color is a not a reasonable basis by with Captain Hamp [the pilot] can base his decision”. Such behavior rises to a level of “arbitrary and capricious”.  The court held that, viewing the evidence most favorably to plaintiff, the plaintiff “did not engage in any suspicious behavior, and there . . . [were] no facts that reasonably connect him with . . . [the two men]” and denied the airline’s summary judgment motion. Id. cf. Muhammad Al-Qudhar’een v. America West Airlines, 267 F.Supp. 2d 841 (S.D. Ohio 2003) (removal proper under objective standard particularly in light of refusal to follow cabin crew’s instructions – summary judgment for airline).

Commentary: Dasrath, like many reported cases on this issue, involved motions for summary judgment.  Thus, the decision against the airline does not mean that it has lost the case.  Rather, plaintiff’s case has survived this motion and may proceed to trial as to factual issues.  If the case does not settle, the airline will offer evidence at trial of its objective bases for ejecting the plaintiff.  However, unlike Al-Qudhar’een, the “uncontested facts” offered by the airline in Dasrath did not unequivocally prove an objective bases for Dasrath’s removal from the flight.  One potential lesson to airlines might be to carefully document all basis for a decision to remove a passenger in an admissible form. i.e. standards “business records.”  If objectively sound and uncontested, the airline may prevail on summary judgment in cases like the above.