Lamothe Law Firm attorney Richard Martin recently published, “When a Plane Is a Vessel, Look Out for Removal!” This article is in the current issue of the Louisiana Advocate, a publication of the Louisiana Association for Justice.
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When a plane is a vessel, look out for removal!
By Richard M. Martin, Jr.
Lamothe Law Firm, LLC
On July 8, 2015, the U.S. Court of Appeals for the Seventh Circuit in Le Junhong, et al. v. The Boeing Company, F.3d (7th Cir. 2015), held that international airliners are essentially “vessels,” and permitted removal based on federal admiralty jurisdiction pursuant 28 U.S.C. § 1333(1) under authority of the 2011 amendment to 28 U.S.C. § 1441(b).
This litigation arose out of the July 6, 2013, crash of a Boeing 777 into the seawall that separates the ocean from the end of a runway at San Francisco International Airport. 49 persons sustained serious injuries, and three of the passengers died. The flight, operated by Asiana Airlines, had crossed the Pacific Ocean from Seoul, Korea. The National Transportation Safety Board concluded that the principal cause of the accident was pilot error.[1]
Some passengers filed suit against Boeing in state courts of Illinois, and Boeing removed these suits to federal court, asserting two sources of jurisdiction: admiralty, plus federal officials’ right to have claims against them resolved by federal courts. 28 U.S.C. §§ 1333, 1442. The federal district court in Illinois remanded them for lack of subject-matter jurisdiction, concluding that Boeing did not act as a “federal officer” for the purpose of §1442, and that the tort occurred on land, when the plane hit the seawall, rather than over navigable water.[2] Boeing appealed, arguing removal under §1442 is reviewable, and the Seventh Circuit stayed the remand order.
After the Seventh Circuit held Boeing was not a “federal officer,” it explored admiralty jurisdiction. Plaintiffs made three arguments: (1) that aviation accidents are outside the admiralty jurisdiction, (2) when the injury occurs on land there cannot be admiralty jurisdiction, and (3) in any event a defendant cannot remove under the admiralty jurisdiction. Boeing argued that admiralty jurisdiction is available when a cause occurred while the plane was over navigable waters.
Both the district judge’s opinion and his order denying reconsideration were issued before the NTSB released its report, which concluded that by 10 seconds before impact a collision was certain;[3] because a Boeing 777 aircraft lacks the ability to accelerate and climb fast enough, no matter what the pilots did in the final 10 seconds. This means that, while the plane was over San Francisco Bay (part of the Pacific Ocean), an accident became inevitable. Given the NTSB’s findings, it was now possible for Boeing to show that the accident was caused by, or became inevitable because of, events that occurred over navigable water. But, asked the Seventh Circuit, was that sufficient?
In Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995), the Supreme Court held that admiralty jurisdiction is available when an “injury suffered on land was caused by a vessel on navigable water,” if the cause bears a “substantial relationship to traditional maritime activity.” Asiana’s plane had crossed the Pacific Ocean, a traditional maritime activity, and the cause of the accident likely occurred over the water. But, an airplane is not a “vessel” and it flew “over” rather than sailed “on” the water. The Seventh Circuit asked whether that made a difference.
It answered this question “no,” because it found no functional difference. It reasoned that an airplane, like an ocean-going vessel, moves passengers from one continent to another, crossing the high seas outside of any nation’s territory, and seas adjacent to the United States but outside any state’s territory. Thus Asiana 214, a trans-ocean flight, was a substitute for an ocean-going vessel, and within the scope of Executive Jet‘s observation that this situation “might be thought to bear a significant relationship to a traditional maritime activity.” Id. at 271. Admiralty jurisdiction was thus available.
But what about the propriety of the removal? Plaintiffs argued that even if the events came within §1333(1), Boeing still was not allowed to remove the suits under 28 U.S.C. §1441(a). However, regardless of case precedent to the contrary,[4] and the plain language of the “savings to suitors” clause,[5] the Seventh Circuit said that §1441(a) permits removal of any suit over which a district court would have original jurisdiction, and because these suits were within the district court’s original admiralty jurisdiction, that condition was satisfied.
This ruling seems to run headlong into Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), where the Supreme Court held that an admiralty claim under §1333 is not a federal-question claim under §1331.[6] But, the Seventh Circuit had hung its jurisdictional hat elsewhere. When the Supreme Court decided Romero, 28 U.S.C. §1441(b) said this:
“Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” (Emphasis added)
As the Seventh Circuit noted, it mattered to the Supreme Court whether Romero arose as a “federal question” under §1331, or as an “other” action within federal jurisdiction arising under §1333(1). The Court held in Romero that it was an “other” action. If the language of §1441(b) had remained unchanged, removal in Le Junhong would have been improper because Boeing’s headquarters are in Illinois. But, in 2011, Congress amended §1441(b).[7] It now reads:
(b) REMOVAL BASED ON DIVERSITY OF CITIZENSHIP.—(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded. (2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (Emphasis added).
Having found that plaintiffs could have filed their suits directly in federal court pursuant to §1333(1), which supplies admiralty jurisdiction, the Seventh Circuit held that original subject-matter jurisdiction existed for removal purposes. In other words, because §1441(b) only limits removal based upon “diversity jurisdiction” under §1332, and admiralty jurisdiction is based on §1333(1), Boeing was free to remove the case. If the “saving to suitors” clause allowed plaintiffs to stay in state court even after the 2011 amendment, they were free to waive or forfeit that right.[8]
What have the district courts in the various federal circuits done regarding removal of admiralty cases since the 2011 amendment to §1441(b)? You can find a nationwide chart which is part of A Survey of Recent Jurisprudence on the Removal of Maritime Claims from State to Federal Court by Ms. Caitlin Baroni in the Tulane Maritime Law Journal.[9]
[1] This was the incident where local San Francisco television station KTVU, the victim of a tasteless prank, identified the pilots of the aircraft as “Sum Ting Wong,” “Wi Tu Lo,” “Ho Li Fuk,” and “Bang Ding Ow.” See https://www.youtube.com/watch?v=L1JYHNX8pdo
[2] The district court held that admiralty jurisdiction is available only when an accident becomes inevitable while the plane is over water.
[3] More accurately, applying maritime terminology, this was an allision.
[4] See Oklahoma ex rel. Edmondson v. Magnolia Marine Transp. Co., 359 F. 3d 1237, 1241 (10th Cir. 2004) (no removal of admiralty actions in the absence of independent basis for removal); Morris v. TE Marine Corp., 344 F. 3d 439, 444 (5th Cir. 2003) (same); In re Chimenti, 79 F. 3d 534, 537 (6th Cir. 1996) (same); Servis v. Hiller Sys. Inc., 54 F.3d 203, 207 (4th Cir. 1995) (same).
[5] § 1333 states: “The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”
[6] Federal questions (i.e., 28 U.S.C. § 1331) have always have been removable without regard to the defendant’s citizenship or residence, and the potential presence of non-diverse defendants.
[7] See Federal Courts Jurisdiction and Venue Clarification Act of 2011, §103, Pub. L. No. 112-63, 125 Stat. 759.
[8] Plaintiffs on appeal did not invoke Romero or the “saving to suitors” clause.
[9] http://www.tulanemaritimejournal.org/recent-developments-removal-maritime-claims-state-federal-court/
