Choice of Law
Choice of law refers to a set of rules used to determine which substantive law will be applied to a multi-jurisdictional case. In aviation law, litigation stemming from airline accidents often has plaintiffs and defendants from different states, so the court must decide which jurisdiction’s law will apply. Choice of law rules provide courts with a method for selecting the law that is best suited to the case.
When deciding issues regarding the recovery of damages in aviation cases, courts used to simply apply the law of the place where the accident happened. This approach is known as the lex loci delecti rule and was often seen as too rigid and unfair. in 1961, the case of Kilberg v. Northeast Airlines changed the way courts considered which law was appropriate by not strictly relying on, and giving less weight to, the location of the accident.
The case of Babcock v. Jackson solidified this decision. In that case, two people from New York were in an automobile accident in Ontario, Canada. The passenger was injured and brought suit against the driver. At the time, Ontario law stated that the driver of a private motor vehicle could not be held liable for injury or death. However, New York law did hold drivers liable, and the New York Court of Appeals ruled that courts should apply “the law of the jurisdiction which has the strongest interest in the resolution of the particular issue represented.”
In aircraft accident cases, the place of injury is almost always fortuitous and thus not entitled to its usual weight in the choice of laws decision.
Today, the choice of law is dictated by a complex patchwork of options. Without a uniform federal law, we are left with 50 independent state choice of law rules and two different maritime laws that apply to most aviation accidents at sea. In international cases, the Warsaw and Montreal Conventions contain no substantive law on the issue of damages, and instead, authorize courts to apply domestic law, which could be state or federal.
Modern choice of law rules give courts a great deal of latitude and several aspects to consider, but there are a few guidelines federal courts tend to follow in particular instances:
- U.S. federal courts must apply the choice of law rules of the state where the case was filed.
- A U.S. federal court with cases transferred from various different courts must apply the choice of law rules of each different state where each case was filed.
- Air traffic control negligence cases are governed by the choice of law rules of the state where the alleged negligence occurred.
Despite the number of options available, courts are often biased in favor of the application of the damage law of the forum and tend to place a greater emphasis on the law of the residence of the decedent and his or her beneficiaries. That approach can be wrought with its own challenges. Partner Justin Green, a former Marine and licensed airplane and helicopter pilot, along with Stephen Pounian, of counsel for Kreindler and Kreindler, posited an example in their article on New York’s Wrongful Death Law:
If passengers from New York, California, Florida and Connecticut are killed in the same plane crash, under modern choice of law rules, the recovery of the New York surviving family members will be strictly limited to their economic loss of financial support and services; the California family will also recover for loss of companionship; the Florida family will also be entitled to additional damages for survivor’s grief; the Connecticut family will recover the decedent’s lifetime earnings (plus loss of companionship for a spouse). The different combinations of potential choice of law rules (depending on where the suit is filed) and damage laws can result in a mind-boggling array of outcomes.
In international aviation accidents that occur over open water, choice of law is superseded by the Death on the High Seas Act, which means victims’ families have limited recovery options. For international accidents that occur over U.S. territorial waters, choice of law becomes an issue again. When American Airlines Flight 587 crashed in Belle Harbor, it claimed the lives of all 260 passengers and five people on the ground. Even though the plane crashed on land, the tail section fell off over Jamaica Bay, and it was decided maritime law would apply for the passengers. However, for the victims on the ground, New York State law applied. In the litigation against Airbus for the same disaster, French law was applied and barred punitive damages; whereas, New York law applied to the ground victims’ cases and did allow for punitive damages.
Courts are often biased in favor of the application of the damage law of the forum.
Because of the wide range of damages laws, it is the opinion of many experts that the choice of law problems in air crash litigation require some kind of federal statutory resolution. One federal court went so far as to urge Congress to enact uniform tort law to apply to liability and damages in commercial airline disasters. However, as of today, no substantive federal law exists, so aviation attorneys must consider each potential forum’s choice of law rules and which laws are most advantageous for the plaintiff before deciding where to bring an aviation case. Having an experienced aviation attorney who can win difficult and complex choice of law issues may help secure the highest recovery possible.