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Maritime Update: 11th Circuit Upholds Application of DOHSA for Jet Crash Into Sea

Bill Schwartz - 

A recent decision of the 11th Circuit Court of Appeals addressed the application of the Death on the High Seas Act (“DOHSA“) to a death when a jet crashed into the sea. In the case of LaCourse v PAE Worldwide, Inc., decided on November 17, the court affirmed the summary judgment granted by the district court. In that ruling, the lower court found that (i) DOHSA applied to and governed LaCourse’s case, (ii) that DOHSA provided the exclusive remedy denying the state court causes of action, and (iii) that PAE was shielded from liability by the government-contractor defense.

The tragic story underlying this appeal began when an Air Force F-16 fighter jet departed Tyndall Air Force Base, east of Panama City, Florida, for a training sortie. The only person on board was the pilot, Matthew LaCourse, a retired Air Force Lieutenant Colonel employed as a civilian by the Department of Defense. The plan was for Lt. Col. LaCourse to take the jet out over the Gulf of Mexico, perform a series of training maneuvers, and then return to Tyndall. Unfortunately, he never came back. During the flight—for reasons the parties dispute—the F-16 crashed into the Gulf more than twelve nautical miles offshore. Sadly, Lt. Col. LaCourse was killed.

On the day of the crash, the F-16 experienced two issues shortly before takeoff. First, the emergency-power unit took longer than expected to activate during the pre-flight check. Second, and more importantly, the jet initially failed the “pitch-override check”—in which the pilot applies full pressure to the stick and presses a switch to make the stabilizers at the tail move a few inches or degrees in a nose-down direction. Despite these two “hiccups,” as one witness called them, the jet ultimately passed all of its pre-flight checks, which indicated no problem with the hydraulic systems. The PAE mechanics who conducted the pre-flight checks were satisfied that the plane was safe to operate and they released it for flight.

Lt. Col. LaCourse’s widow and personal representative, Patricia LaCourse, filed this wrongful-death action and jury demand in Florida state court. They alleged state-law claims for negligence, breach of warranty, and breach of contract. PAE removed the case to federal court based on federal-officer jurisdiction, diversity jurisdiction, and jurisdiction under DOHSA; i.e. —which, in relevant part, confers admiralty jurisdiction “[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas.”

Resisting PAE’s removal, LaCourse disputed that federal jurisdiction existed on any basis. Once in federal court, PAE moved for partial summary judgment, arguing that DOHSA governed LaCourse’s suit and, accordingly, that any potential recovery should (per the statute) be limited to pecuniary damages. The district court granted PAE’s motion and held that DOHSA applied and “provided the exclusive remedy for death on the high seas, preempts all other forms of wrongful death claims, and only permits recovery for pecuniary damages.”

The first question the Court of Appeal had to address was whether DOHSA applied to LaCourse’s suit. The district court held that it did. In relevant part, DOHSA’s operative provision states that “[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas…the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.” DOHSA’s applicability mattered, among other reasons, because it limited a plaintiff’s recovery to “compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought” and thereby foreclosed recovery for emotional injury and punitive damages. 

In opposition, LaCourse first argued the district court erred in holding that DOHSA applied because the “wrongful act, neglect, or default” asserted here—PAE’s negligent maintenance of the F-16—did not “occur[ ] on the high seas,” as the Act’s plain language requires. Rather, she said, the alleged negligence occurred on land—when the jet was improperly serviced at Tyndall Air Force Base. Accordingly, LaCourse contended, DOHSA did not apply to her suit.

The Court of Appeal noted that “If we were writing on a clean slate, we would almost certainly agree. LaCourse is exactly right that, according to its language, DOHSA applies only when the “death of an individual is caused by wrongful act, neglect, or default occurring on the high seas.” They also remarked that LaCourse was right in that the alleged “wrongful act, neglect, or default” here occurred not “on the high seas,” but on terra firma.

Unfortunately, they held against LaCourse that controlling precedent of the Supreme Court decision in Offshore Logistics, Inc. v. Tallentire observed that “admiralty jurisdiction is expressly provided under DOHSA [where] the accidental deaths occurred beyond a marine league from shore.” And, in a prior decision of the Fifth Circuit (the predecessor court to the 11th Circuit) of In Re Dearborn, they recognized that “DOHSA has been construed to confer admiralty jurisdiction over claims arising out of airplane crashes on the high seas though the negligence alleged to have caused the crash occurred on land.” Therefore, the simple fact that [plaintiff’s] death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA…[A]dmiralty jurisdiction has repeatedly been extended to cases in which death or injury occurred on navigable waters even though the wrongful act occurred on land. The place where the negligence or wrongful act occurs is not decisive. The appeals court held that “It’s not for the three of us to second-guess the correctness of Offshore Logistics or Dearborn Marine…and (they were)…constrained to agree with the district court that DOHSA applied despite the fact that PAE’s alleged negligence occurred on land…” 

LaCourse had also separately argued DOHSA did not govern because the plane crash that killed her husband lacked a “maritime nexus.” She insisted this was required by the Supreme Court’s landmark admiralty decision in Executive Jet Aviation, Inc. v. City of Cleveland. In that case, a plane flying from Ohio to Maine crashed into Lake Erie after striking a flock of seagulls shortly after takeoff. Although the crew wasn’t injured, the plane was a total loss, so its owners brought an action in admiralty, alleging negligence by several airport employees. The Supreme Court held that maritime locality alone—there, Lake Erie’s navigable waters—is not a sufficient predicate for admiralty jurisdiction in aviation-tort cases, and that “in the absence of legislation to the contrary,” claims arising from airplane crashes are not cognizable in admiralty unless the alleged wrong bears “a significant relationship to traditional maritime activity”—i.e., has a maritime nexus. Because the flight in Executive Jet “would have been almost entirely over land…within the continental United States” and was “only fortuitously and incidentally connected to navigable waters,” the Court determined that it bore “no relationship to traditional maritime activity”—and, accordingly, that admiralty jurisdiction was lacking.

LaCourse argued that, like the flight in Executive Jet, her husband’s flight—which was intended to begin and end at Tyndall Air Force Base—was also only “fortuitously over water” and thus bore no significant relationship to “traditional maritime activity.” The Court of Appeal found the problem with LaCourse’s argument was that Executive Jet didn’t involve DOHSA—there were no injuries, let alone any fatalities to support a wrongful-death claim. And significantly, they noted the Supreme Court was careful there to include a caveat when announcing its holding—namely, that a maritime nexus is required only “in the absence of legislation to the contrary.” The 11th Circuit concluded that if Executive Jet existed alone, LaCourse’s maritime-nexus argument might still have a chance. But, Executive Jet wasn’t the Supreme Court’s last word on DOHSA’s application to aviation-based torts. Rather, it had already explained, the Supreme Court in Offshore Logistics held that DOHSA applied to all cases—including aviation-related cases—in which a death occurs on the high-seas. In sum, they agreed with the lower district court that DOHSA did not require a maritime nexus. Instead, because of the Supreme Court’s interpretation, DOHSA applied whenever a death occurred on the high seas and thus governed LaCourse’s wrongful-death suit.

Second, the appeals court found under Offshore Logistics, it preserved only state-court jurisdiction—not state substantive wrongful-death law. Therefore, where DOHSA applied, it preempted all other wrongful-death claims under state or general maritime law. As a result, they further held the district court was correct to conclude DOHSA foreclosed LaCourse’s breach-of-warranty and breach-of-contract claims under state law.

Last, the question was addressed whether PAE was protected by the “government-contractor defense.” In looking at that issue, they found all that mattered was whether PAE violated reasonably precise government procedures. Based on the evidence presented in this case from both parties, the 11th Circuit concluded that PAE did not violate those procedures and therefore again affirmed the district court’s decision summary judgment was appropriate on “government-contractor grounds.”

In summary, the court here upheld the conclusion on summary judgment DOHSA applied and governed LaCourse’s case, DOHSA provided her exclusive remedy, and that PAE was shielded from liability by the government-contractor defense.

Click here to read the decision in its entirety.


If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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