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IN RE AIR DISASTER NEAR HONOLULU

August 13, 1990

IN RE AIR DISASTER NEAR HONOLULU, HAWAII ON FEBRUARY 24, 1989

WALKER


The opinion of the court was delivered by: VAUGHN R. WALKER

These actions arise out of a mid-air accident on February 24, 1989, involving United Airlines Flight 811. The flight originated at San Francisco International Airport on February 23, 1989, and made a short stop in Los Angeles, where passengers were transferred to a Boeing 747-122 aircraft (N4713U). The aircraft refueled in Honolulu and left Honolulu International Airport at approximately 1:34 a.m., February 24, for Sydney, Australia with a planned stop in Auckland, New Zealand. The plane carried 337 passengers and 18 crew-members.

 At approximately 2:09 a.m., the aircraft was flying at an altitude of approximately 22,000 feet, over international waters approximately 85 nautical miles south of Honolulu, when the forward cargo door and a portion of the fuselage separated from the aircraft, resulting in rapid cabin decompression. Nine passengers were sucked out of the hole in the fuselage and were killed. The plane returned to Honolulu and landed approximately 30 minutes after the accident.

 On August 14, 1989, the Judicial Panel on Multidistrict Litigation transferred all actions arising out of the Flight 811 accident to the Northern District of California. There are currently approximately 76 such cases pending before this court. *fn1" United Air Lines and the Boeing Company have been named as defendants in all actions, except those brought by crew-members which name only Boeing.

 In a January 5, 1990 pretrial order, Judge William W. Schwarzer (who presided over these cases before their transfer to the undersigned) ordered the parties to submit joint memoranda addressing the issues of choice of law and the availability of punitive damages. The parties have done so, and on July 11, 1990, the court heard oral argument on those issues. This order resolves some of the issues presented by the parties.

 I. APPLICABILITY OF GENERAL MARITIME LAW.

 Defendants contend that the torts alleged in these actions are maritime torts and that the applicable law is therefore general maritime law. Plaintiffs, while conceding that "traditional legal concepts would apply maritime law to aircraft-related injuries and deaths on the High Seas" (Opp. Mem. at 7), seek the application of state law. Plaintiffs attempt to distinguish those cases applying maritime law to airplane crashes into the high seas by pointing to the fact that here the plane returned to Honolulu where it landed.

 A maritime tort "requires a showing that: (1) the alleged wrong occurred on or over navigable waters, and (2) the wrong bears a significant relationship to traditional maritime activity." Williams v. United States, 711 F.2d 893, 896 (9th Cir. 1983), citing Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 34 L. Ed. 2d 454 , 93 S. Ct. 493 (1972) (emphasis added). See also Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967, 969 (9th Cir. 1983) ("a suit in tort is cognizable in admiralty only if the tort occurred on or over navigable waters"). Requirement (1) is clearly met here. It is not disputed that the cargo door blew off the United jet when it was approximately 85 miles offshore of Hawaii, bound for New Zealand. *fn2" Requirement (2) is also met. The Supreme Court has held that the transoceanic transportation of passengers by air is "a function traditionally performed by waterborne vessels" and satisfies the "significant relationship" criteria. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218-219, 91 L. Ed. 2d 174 , 106 S. Ct. 2485 (1986).

 Plaintiffs have not come forward with any persuasive argument why this traditional analysis should not apply here. While plaintiffs are perhaps correct that there is an element of fortuity in the fact that the cargo door blew off over sea rather than over land, that element of fortuity is also present where a mechanical failure occurring in the air causes a plane on a transoceanic flight to crash into the ocean. The plaintiffs do not dispute that the latter situation would constitute a maritime tort, even though the same mechanical failure if it occurred while the plane was over land, would not. Plaintiffs in essence appear to be arguing that the traditional application of maritime law to air accidents occurring over sea and involving transoceanic flights is analytically misplaced. While that may be the case, plaintiffs have offered no compelling rationale for this court to ignore settled precedent, and the court concludes that the torts alleged in these actions are maritime in nature.

 Because the alleged torts are maritime torts, admiralty jurisdiction exists, and general (i.e. federal) maritime law applies as the substantive law in these actions. General maritime law preempts state law, and must be applied even where, as here, plaintiffs choose not to invoke admiralty jurisdiction and rely instead on diversity jurisdiction and federal question jurisdiction. *fn3"

 Because general maritime law supplies the substantive law in these actions, *fn4" it is not necessary to resolve the potentially complex choice of law questions involving the competing interests of several states and foreign nations that would otherwise arise. *fn5"

 II. APPLICABILITY OF THE DEATH ON THE HIGH SEAS ACT.

 The Death on the High Seas Act, 46 U.S.C. § 761, et seq. ("DOHSA") provides in part:

 Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league [three nautical miles] from the shore of any State, . . . the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

 46 U.S.C. § 761.

 Plaintiffs acknowledge that DOHSA has been applied uniformly where airliners have crashed into the high seas, but seek to distinguish the situation here in which the airplane was able to return to land following the accident. Several cases have held that DOHSA applies even when an airplane does not crash into the ocean. See D'Aleman v. Pan Am, 259 F.2d 493 (2d Cir. 1958); Kropp v. Douglas Aircraft Co., 329 F. Supp. 447, 455 (E.D.N.Y. 1971); Noel v. Linea Aeropostal Venezolana, 154 F. Supp. 162 (S.D.N.Y.), aff'd on other grounds, 247 F.2d 677 (2d Cir. 1956). See also Notarian v. Trans World Airlines, Inc., 244 F. Supp. 874 (W.D. Pa. 1965) (injury action; admiralty jurisdiction upheld). Plaintiffs have not cited any reported case to the contrary. It would be inconsistent to hold that the "wrongful act, neglect or default" at issue here did not "occur on the high seas" for purposes of DOHSA, but that it did satisfy the Executive Jet/Williams "maritime locality" requirement. Plaintiffs have come forward with ...


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