Metropolitan News-Enterprise


Tuesday, March 15, 2011


Page 1


Court Declines to Revive Suit Over Military Helicopter Crash


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday declined to revive a lawsuit by the survivors of three American soldiers, who were killed in a 2007 helicopter crash near Catalina Island, against the aircraft’s manufacturer.

Disagreeing with the Second Circuit, the panel concluded the Death on the High Seas Act preempted the plaintiffs’ state law and maritime causes of action since the accident had occurred more than three miles off the coast of California.

A MH-60 Sierra twin-turbine helicopter manufactured by the Sikorsky Aircraft Corporation, commonly known as a Seahawk, was on a mission off the USS Bonhomme Richard when it went into the ocean 9.5 miles from Catalina Island.

Petty Officer 2nd Class Christopher M. Will, 29, of Warren, Mich., was pulled from the water shortly after the crash but died while being treated onboard the Bonhomme Richard.

Also killed were Lt. Laura J. Mankey, 26, of West Hills, in northern Los Angeles County; Lt. Adam A. Dyer, 28, of Lafayette, La.; and Petty Officer 1st Class Cory J. Helman, 27, of New Richmond, Wis. They were members of Helicopter Sea Combat Squadron 23 assigned to Naval Air Station North Island on San Diego’s Coronado peninsula.

The personal representatives and successors in interest for Helman, Will, and Dyer filed a complaint in the Los Angeles Superior Court against Sikorsky and others, contending that defects in the helicopter and its component parts caused the accident. The plaintiffs asserted claims for strict products liability, negligence, failure to warn, breach of warranty, and wrongful death and survival.

Judgment on Pleadings

Sikorski removed the case to federal court and filed a Rule 12(c) motion for judgment on the pleadings. U.S. District Judge Stephen V. Wilson of the Central District of California granted the motion, finding DOHSA applied to noncommercial aircraft accidents “beyond three nautical miles from shore” and that a 1988 proclamation by then-President Ronald Reagan, extending the territorial sea of the United States to 12 nautical miles from shore, did nothing to alter DOHSA’s applicability.

DOSHA provides that the personal representative of a decedent may bring a civil action in admiralty against the person or vessel responsible for any death “caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States.” The act preempts all other remedies for wrongful death occurring at sea.

In her opinion for the appellate court, Senior Judge Betty B. Fletcher noted the Second Circuit held in 2000 that “high seas” as used in DOHSA refers to “those waters that lie beyond United States territorial waters, that is, international waters,” in In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200.

Then-Judge Sonia Sotomayor had dissented, arguing that Congress had used the term in connection with the three mile boundary to make clear the boundary beyond which DOSHA should apply.

Fletcher agreed with Sotomayor’s interpretation, reasoning that the intended boundary of DOHSA’s applicability was “plainly stated within the statute’s text” as the area beyond three miles from shore.

“Although the statute also uses the term “high seas” to describe the scope of the enacted remedial scheme, there is no indication that this term was meant to incorporate into the statute the independent and fluid political concept of U.S. territorial waters,” Fletcher said, positing that the fixed three-mile boundary was “a more natural reading” of the statute.

Such an interpretation, she added, was supported by the fact that “the precise starting point of the ‘high seas’ was apparently subject to dispute when DOHSA was enacted,” and subsequent Congressional amendments to the act.

Circuit Conflict

Fletcher acknowledged that “this is the opposite conclusion from that reached by the Second Circuit,” but emphasized that court had considered the scope of DOSHA without the interpretative guidance provided by the Congressional amendments in 2000 and 2006.

The jurist also agreed with Wilson’s determination that Reagan’s 1988 proclamation did not affect DOSHA since the proclamation explicitly stated that it did not “extend[ ] or otherwise alter[ ] existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom” and the act was not among those amended by Congress to incorporate the proclamation’s extension of U.S. territorial waters.

“Finally, though we do not decide the issue, we remain doubtful that the President would have the authority to alter the remedial scheme set forth in DOHSA through a proclamation,” Fletcher concluded.

Judges Marsha S. Berzon and Consuelo M. Callahan joined Fletcher in her opinion.

The case is Helman v. Alcoa Global Fasternes, Inc., 09-56501.


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