Case to Watch: Schermerhorn v. Israel

President Obama
The state of our Union is strong. Credit: CNN

At Opinio Juris, Julian Ku wrote about an interesting new action filed in Washington, Schermerhorn v. State of Israel (D.D.C.). The case arises out of the 2010 Gaza flotilla, in which several ships carrying self-described activists sought to challenge the Israeli (and Egyptian) blockade of Gaza. It turns out one of the ships, the Challenger I, was a US-flagged vessel. Gotcha! Well, maybe, as we’ll see. The nationality of the Challenger I is the jurisdictional hook several of the amateur blockade runners are seeking to use to sue Israel in the US courts for torture, other war crimes, arbitrary arrest, false imprisonment, assault and battery, intentional infliction of emotional distress, and conversion.

The glaring problem with the action, of course, is subject-matter jurisdiction, because Israel is a foreign state entitled to immunity under the FSIA unless an exception applies. The plaintiffs cite 28 U.S.C. § 1605A, the state-sponsored terrorism exception to FSIA immunity, but that seems to me to be a non-starter, since under § 1605A(a)(2)(A)(i), the court only will hear such a claim if the state defendant is a designated state sponsor of terrorism, which Israel is not.

The real action is in § 1605(a)(5), which provides an exception to immunity in cases of torts “occurring in the United States.” The vessel is an American vessel and should, the plaintiffs claim, be treated as part of the United States for these purposes.

Now, this is an interesting argument, and one that, as far as I know, hasn’t arisen before, since not too many US-flagged vessels are in the blockade-running business these days. So I don’t want to give a final view, but here are some thoughts.

First, it’s clear that the leaving aside the FSIA, the United States can exercise jurisdiction over its vessels on the high seas. As a matter of US law, we say that US vessels are within the special maritime jurisdiction. As a matter of the law of the sea, we say that the flag state has jurisdiction to prescribe, adjudicate, and enforce. I think it’s clear that US courts would have jurisdiction of these claims if the alleged torts were committed by non-state actors.

But the FSIA creates an exception to immunity only where the tort occurs “in the United States.” Just because the United States can exercise jurisdiction over its vessels wherever they are in the world, it does not seem to follow that the vessels are “in the United States” in any meaningful sense. In what sense does that statute use those words? I took a look at a compilation of various statutory definitions of the term “United States,” and none of them seem to suggest that the term should include US-flagged vessels. 1 Indeed, Title 46 of the US Code, which concerns shipping and US-flagged vessels, defines the “United States” in the geographic sense to include the fifty states, the District of Columbia, Guam, Puerto Rico, the Virgin Islands, American Samoa, the Northern Mariana Islands, and any other territory or possession of the United States. It has a separate definition of “vessel of the United States,” but it does not suggest that a “vessel of the United States” is part of the United States.

If I’m right, what is the policy of the statute? Why should a foreign state have immunity from suit if it commits torts on a vessel over which the United States can exercise as much jurisdiction as it could exercise over New York City? If I had to make a suggestion about this, I would say two things. First, the United States does not want to be haled into foreign courts whenever the US Navy boards a foreign-flagged ship on the high seas. Concerns of reciprocity and comity are central to the FSIA. Second, the IDF, when it boarded the Challenger I, was engaged in a governmental function, not a private function. Section 1605(a)(5) seems mostly to be aimed at foreign states engaged in non-governmental functions on US territory.

So I’m not sure, but I believe Professor Ku is right to opine that the case likely will be dismissed. I’ll keep an eye on this for you.

Here is a link to the complaint.

Notes:

  1. Caution to the reader: the compilation seems to come from a crazy person’s website: it seems that crazy people are quite interested in how the “United States” is defined. Check out his “study guide.” Who knew? Still, the compilation seems to be useful, though apparently outdated.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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