The Mavi Mamara

The Mavi Mamara, another ship in the flotilla. Credit: Free Gaza movement

The case of the day is Schermerhorn v. State of Israel (D.D.C. 2017). We first took a look in January 2016, and I’ve written about another case in the “Gaza flotilla lawfare” genre, Doğan v. Barak, too. David Schermerhorn were passengers on the Challenger I, a US-flagged vessel that took part in the 2010 attempt to break the Israeli naval blockade of Gaza. After the IDF stopped the ship, Schermerhorn and the others sued Israel in Washington for physical and emotional injuries, on theories of war crimes, false imprisonment, assault and battery, intentional infliction of emotional distress, and conversion. Israel moved to dismiss on grounds of foreign sovereign immunity.

The judge first addressed a pleading question. The plaintiffs argued that in light of de Csepel v. Hungary, 169 F. Supp. 3d 143 (D.D.C. 2016), where the complaint’s allegation “directly mirror[s] the jurisdictional standard,” all that is necessary is that the claim of jurisdiction be non-frivolous. But the judge rejected this argument, holding that the rule only applies in contexts like the expropriation exception to FSIA immunity, where “the merits inquiry [mirrors] the jurisdictional standard.” That’s not the case here, of course, since the jurisdictional questions that we’ll see in a moment—whether Israel is a designated state sponsor of terrorism and whether the alleged torts took place within the United States—are entirely unrelated to the questions that would actually have to be litigated if the case went forward.

The plaintiffs’ invocation of the state-sponsored terrorism exception to FSIA immunity was an obvious non-starter, since Israel is not a designated state sponsor of terrorism. The more interesting question was whether the torts occurred in the United States, or more specifically, within the “territory and waters, continental or insular, subject to the jurisdiction of the United States,” 28 U.S.C. § 1603(c). You would think the answer would be obvious. But the Challenger I was a US vessel.

The best precedent is Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984), which held that torts that occurred in the American embassy in Tehran during the hostage crisis did not occur in the “United States.” There, the court held that the words “continental or insular” made it clear that the statute applied only to “the continental United States and such islands that are part of the United States or are its possessions,” and to US waters, not to all property over which the United States may have any jurisdiction whatsoever. The judge found this persuasive and also rejected the argument that a vessel “constitute[s] a detached and floating portion of the national territory,” The S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. ser. A no. 10. She noted US precedents holding that a vessel is not “territory” in this sense. “The Supreme Court has explained that the theory ‘is a figure of speech, a metaphor,’ and the Court has made clear that when the law uses the term ‘territory’ in a ‘physical and not a metaphorical sense,’ it is referring to ‘areas or districts having fixity of location and recognized boundaries.”

As neither exception applied, the court lacked jursidiction, and the judge dismissed the complaint.